1 Wednesday, 8 June 2005

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.23 p.m.

6 JUDGE PARKER: Good afternoon, sir. If I could remind you that

7 the affirmation you made at the beginning of your evidence still applies.

8 Mr. Whiting.

9 MR. WHITING: Thank you, Your Honour.

10 WITNESS: SKENDER BYLYKBASHI [Resumed]

11 [Witness answered through interpreter]

12 Cross-examined by Mr. Whiting: [Continued]

13 Q. Mr. Bylykbashi, I want to continue where we left last evening,

14 and that is you were testifying about being with Haradin Bala at the

15 beginning of 1999 in Zabel. Do you recall that testimony?

16 A. Yes.

17 Q. You may have to sit a little bit closer to the microphones so

18 that the interpreters can hear you.

19 And you testified that you were the leader of the group. That's

20 correct, right?

21 A. Yes, that's correct, in the beginning I was.

22 Q. Until when?

23 A. Approximately a month later I was appointed to go on another

24 point.

25 Q. What month would that have been?

1 A. End of February/beginning of March, to my recollection.

2 Q. Now, is Agim Bylykbashi related to you?

3 A. Yes, he's a relative of mine.

4 Q. How is he related to you?

5 A. We are blood related.

6 Q. Was he also in Zabel in January, February of 1999?

7 A. Yes, he was there as well.

8 Q. You testified that Haradin Bala's job was to observe the

9 movements of the enemy. Correct?

10 A. Yes, correct.

11 Q. And he used binoculars?

12 A. Yes, that's correct.

13 Q. Do you recall Haradin Bala complaining about what other soldiers

14 were doing or not doing at that time?

15 A. No, I don't recall, not at this moment.

16 Q. Well, I want to read to you some entries in his logbook from that

17 time and see if it refreshes your recollection about some of his

18 complaints about other soldiers. This is an entry from the 8th of

19 February, 1999.

20 MR. GUY-SMITH: I would interpose --

21 THE WITNESS: [Interpretation] February.

22 JUDGE PARKER: Yes, indeed, Mr. Guy-Smith.

23 MR. GUY-SMITH: I would be interposing at this point an objection

24 with regards to relevance. We are now in the year of 1999, the month of

25 February, some considerable months after the indictment period. I

1 appreciate that cross-examination has wide latitude, however I believe we

2 may be a bit far afield at this juncture.

3 JUDGE PARKER: Mr. Whiting.

4 MR. WHITING: Your Honour, I think that the cross-examination

5 that I'm going to pursue with respect to this time and the diary which is

6 in evidence, it's P12, is relevant to the attitude of the accused Bala

7 towards his job, towards other soldiers who were not doing his job, and I

8 think this has all been made directly relevant by the evidence about --

9 the evidence and the arguments about the medical condition and the fact

10 that he was unable to do work that the --

11 The cross-examination that I'm going to pursue and ask the

12 witness about I think tends to show that the accused was very determined

13 to do his job and to follow orders and to make sure that the work was

14 done. And this -- one would not have expected this to be any different

15 six months after the time period of the indictment.

16 [Trial Chamber confers]

17 JUDGE PARKER: Proceed for the moment, Mr. Whiting. If no clear

18 relevance emerges, we may interrupt you again. So don't think you're

19 quite out from the shadow of Mr. Guy-Smith's objection yet.

20 MR. WHITING: I appreciate that, Your Honour.

21 Q. This is an entry from the 8th of February, 1999, and it's -- Mr.

22 Bala writes: "I have a criticism regarding the doctors at Shale that

23 have approved leave for one day for the following soldiers: Sheremet

24 Kolshi, Xheme Bajraktari, Sef Bajraktari, Mehdi Krasniqi, Haki

25 Ballagoshi. In my view, it is unnecessary for soldiers to take leave and

1 return healthy and well from sick leave."

2 Now, do you remember Mr. Bala at that time complaining about

3 doctors giving sick leave to soldiers, and in particular the soldiers

4 that I've just identified?

5 A. I remember something related to this but it has been six years

6 now that these events took place. Now, I can't tell you details, whether

7 he complained to me or whether he wrote this only in his diary. I really

8 can't help you with that.

9 Q. Well, as the leader of the group, this would have been important,

10 wouldn't it, if complaints about soldiers getting sick leave?

11 MR. GUY-SMITH: Well, I -- once again, now Mr. Whiting is

12 suggesting that the witness speculate with regard to the internal

13 writings of Mr. Bala. I don't believe in the first instance that the

14 entry itself sheds any relevance with regard to any issues that are

15 presented to the Court. Whether or not Mr. Bala felt that other people

16 should or should not operate in a particular way or whether or not they

17 should or should not have sick leave does not deal with the actuality of

18 his particular physical condition and his motivations.

19 JUDGE PARKER: The first part of that concern, Mr. Whiting, was

20 conjecture.

21 MR. WHITING: Right. I wasn't asking the witness to speculate or

22 engage in conjecture. I was asking him -- and I'll look at my question

23 again, but what I intended to ask him is whether this would have been an

24 important topic for him as the commander of the group, an important

25 issue. And to some --

1 JUDGE PARKER: I think it came across as being directed to

2 whether it would have been important for Mr. Bala. You're saying now

3 it's whether it was important for the witness. Is that what -- do I

4 understand you correctly?

5 MR. WHITING: That's what I intended to ask. "As leader of this

6 group, this would have been important if complaints about soldiers

7 getting sick leave."

8 I intended to ask -- what I meant was be important to him as the

9 leader of the group.

10 JUDGE PARKER: Proceed.

11 MR. WHITING: Thank you, Your Honour.

12 Q. Sir, this topic of soldiers getting sick leave and another

13 soldier complaining about soldiers getting sick leave, that would have

14 been an important topic to you as the commander of the group. Correct?

15 A. There is a misunderstanding regarding what you're saying. I

16 don't know what Mr. Bala wrote in his diary. I didn't read his diary. I

17 only heard that maybe there were complaints because, as I said, it has

18 been six years now. But we didn't discuss the issue of sicks -- of sick

19 leaves. So it only remained in that notebook where he wrote it and I

20 don't remember him coming directly to me and complaining about these

21 soldiers. It was a private matter for him and I don't know even myself

22 why he wrote that.

23 Q. But you did hear something about this at the time. Correct?

24 A. I don't know what time where I heard it, whether at that moment

25 or later, from a soldier who served with me together and then brought up

1 this subject later on while we were serving somewhere else. So I really

2 don't know in details.

3 Q. Okay. So what you're telling us is you can't remember when you

4 heard this or what exactly you heard. Is that your testimony? Is that a

5 fair summary of what you're telling us?

6 A. Up to a point.

7 Q. Well, what do you mean up to a point?

8 A. As I already told you, after you read this part, I remember that

9 something was discussed in relation to what you read but I don't remember

10 details.

11 Q. And you also don't remember when it was discussed, whether it was

12 at the time or later. Correct?

13 A. No, I don't remember because in fact we did not discuss it. It's

14 just that someone mentioned it. It's something that friends discussed

15 amongst themselves. It's not that someone complained and then it became

16 an issue that was discussed.

17 Q. Now, Mr. Bala also writes in an entry for the 26th of February,

18 1999, that he had some difficulty with the person who was in charge of

19 the 3rd Squad and he said: "The person in charge of the 3rd Squad

20 threatened me using offensive words. Witnesses to this were Barllti,

21 Fatmir, Muharrem, Luli being the fifth witness when Hamza attacked me

22 physically also."

23 Now, I take it you heard about this event?

24 MR. GUY-SMITH: Same objection, Your Honours.

25 JUDGE PARKER: Relevance do I take it is the point.

1 MR. WHITING: Well, Your Honour --

2 JUDGE PARKER: Just a minute, Mr. Whiting.

3 MR. GUY-SMITH: Yes, considering that the stated purpose for this

4 line of examination. Especially in light of that.

5 JUDGE PARKER: Thank you.

6 Mr. Whiting, it's becoming less clear where this is leading us

7 and how it's relevant.

8 MR. WHITING: Well, Your Honour, the witness has testified in

9 direct about specific memories. Now the witness has indicated some

10 issues with respect to that, and I think I should be entitled to explore

11 that.

12 JUDGE PARKER: Well, you're now moving to credit. Is that it?

13 MR. WHITING: Well, that's correct.

14 JUDGE PARKER: Continue, Mr. Whiting.

15 MR. WHITING: Thank you, Your Honour.

16 Q. Sir, did you -- do you recall hearing about this event, the

17 problem that Mr. Bala had with the person in charge of the 3rd Squad?

18 A. Yes, I remember it.

19 Q. What do you remember about it?

20 A. I just remember that there was a verbal argument with Mr. Hamza,

21 whom he knew from before, and I think they were family related. But we

22 didn't make an issue out of this problem and we just put an end to it

23 without confusing or condemning any of them.

24 Q. How did you learn about it?

25 A. I'm sorry, but I can't remember how but I know this problem. It

1 remained in my memory. I don't know that Mr. Bala informed me. I really

2 don't know how I learned about it.

3 Q. And did you solve the problem? Did you settle it as the

4 commander or president leader of the group?

5 A. You should understand one thing. We were a bunch of friends that

6 knew each other from long, long before, except for a few. But the others

7 were all like friends and relatives, co-villagers. We solved all our

8 problems by discussing them. We didn't come to a point when we couldn't

9 understand each other any more. We just solved the problems on the spot.

10 Q. I don't think you answered my question. My question was: Did

11 you -- did you settle it -- or I'll rephrase it. Did you participate in

12 the solving of the problem?

13 A. I see two questions here, whether I resolved it or whether I was

14 part of the solution. Which do you want me to --

15 Q. You're absolutely right, sir. Why don't we take them one at a

16 time. Did you participate in solving the problem?

17 A. Yes.

18 Q. Did you settle the problem?

19 A. Yes, together with the friends, with the comrades.

20 Q. Do you remember when it happened?

21 A. No, I don't remember. I don't remember the dates. It was during

22 the period I was there.

23 Q. Now, finally it's written -- finally he writes: "Although

24 soldier Haki Balagoshi was told not to take over the shift because that

25 was to be done by the person in charge, the same ordered the soldier to

1 do it without any reason only because he is lazy. The person in charge

2 is Hamez Rexhepi."

3 Now, do you -- sir, do you --

4 A. Excuse me. Just a second.

5 Q. I haven't asked the question yet.

6 A. I think I didn't get the right translation or at least I didn't

7 understand what you meant by "the shift." You meant maybe the change of

8 the guard shift. This is what you meant?

9 Q. I can only tell you what's written here, but that's perhaps what

10 is meant and I'll read it again because the sentence is a little bit

11 confusing. "Although soldier Haki Balagoshi was told not to take over

12 the shift because that was to be done by the person in charge, the same

13 ordered the soldier to do it without any reason only because he is lazy."

14 And then it says: "The person in charge is Hamez Rexhepi, and the shift

15 started at 2200 hours on 27th February, 1999."

16 Now, do you recall Haradin Bala thinking that the person in

17 charge was lazy?

18 A. No, this I don't remember. This sentence that you put to me, I

19 don't remember. I don't recall to have heard it or to have read about it

20 somewhere, because I think that was not very important for me to remember

21 such things.

22 Q. Now, let's go back to the Serb offensive that started on the

23 25th, 26th of July, 1998. You recall that offensive?

24 A. Yes, yes, on the 26th.

25 Q. You testified that you joined -- you testified here yesterday

1 that you joined the KLA after that offensive. You remember that

2 testimony?

3 A. During that offensive, on the -- not after the offensive but in

4 the morning of the attack.

5 Q. So the morning of the 26th or 25th?

6 A. Probably you have notes. I know that the date when the

7 air-strikes started -- sorry, apologies, when the shelling started, I

8 know that I went to the positions. The date, you must know it better.

9 Q. Where did you join?

10 A. I joined it with some friends who came -- who had come from

11 Albania one day earlier. We went to Laz -- Fanat Te Llazet, a place

12 which is 3 or 4 kilometres away from the village as the crow flies.

13 Q. 3 to 4 kilometres away from Bajince?

14 A. Maybe 2 or 3, not 4. But the place is well-known.

15 Q. Okay. 2 or 3, though, from Bajince?

16 A. Yes, it is possible that it is 2 or 3.

17 Q. In which direction?

18 A. East, in the direction of Magure, in the east.

19 Q. Where did you get the gun?

20 A. A friend of mine brought me the gun. He is also a neighbour of

21 mine. He brought it from Albania. It was a rifle, a 20-millimetre

22 rifle.

23 Q. You also testified here that after the Serb offensive you and

24 Haradin Bala were at the same point in Bajince.

25 A. Yes, two or three days later. Not two or three days later, but

1 when we returned from Zborce.

2 Q. Well, in fact it was some weeks later, wasn't it, it was a number

3 of weeks after the beginning of the offensive that Haradin Bala came back

4 to Bajince, wasn't it?

5 A. You have misunderstood it because I don't think I said it. On

6 the day that we went to Zborce in the morning on the day of the shelling,

7 we were waiting to go to Lapusnik, but we went to Zborce together with a

8 group of friends to protect the place from a possible attack from that

9 area. Because the place where we were was surrounded by a range of

10 mountains and fearing that the Serbs might attack us from that point, we

11 went there. We stayed there until the evening. In the evening at about

12 12.00, a soldier came and told us that the Lapusnik gorge had fallen and

13 that he -- he told us that it's better for you to go back to your own

14 gorge. And this is what we did, we went back to the gorge where the

15 population had taken shelter.

16 In the beginning, it was a chaotic situation because everybody

17 was taken by surprise that the Lapusnik gorge would one day fall, which

18 they had learned then. But soon we started to organise ourselves, and

19 either on the next day or the day after that, the population returned to

20 the village, whereas we remained there -- in the mountains. We divided

21 in two groups to protect the population.

22 We -- there were two groups, but we kept in contact. We switched

23 places. Sometimes we went closer to the village; sometimes we went to

24 the mountains. This is how we stayed. We stayed there for two or three

25 weeks, and then we went back to the village and then stayed in a room, in

1 oda. Those whose houses were near went sometimes to sleep at their own

2 homes.

3 Q. I understand. What I'm putting to you is that after you returned

4 to Bajince from Zborce, Haradin Bala did not come to Bajince and stay in

5 Bajince until -- for some weeks, until the end of August. Correct?

6 A. You are saying this. No, that's not correct.

7 Q. So what is your testimony about when he came?

8 A. My testimony is that I have seen him. I didn't see only Haradin

9 Bala, but also other friends like Agim, Ramadan Krasniqi, who used to be

10 in Pjetershtice. They, too, came to the gorge. In fact, it was -- it

11 was kind of disintegration of the army and everybody went to protect

12 either the family or the village they were living, where they knew the

13 terrain better. And since Haradin Bala's family was in Bajince, he did

14 the same. Whether he came that day, I am not sure. It was night because

15 almost everybody went to join their own families to see how they were

16 doing. On the next day, we divided in two groups and went not to points

17 because there were no points there, but in secret places in the

18 mountains.

19 Q. What I'm trying to focus on is when, according to your memory,

20 when he came to Bajince, in relation to the offensive on Lapusnik and the

21 fall of Lapusnik gorge. Was it a day or two? Was it longer than that?

22 What is your memory?

23 A. I'm sorry, but I think I found Haradin Bala there on the day when

24 I returned from Zborce. Two days ago or three days ago before going to

25 meet my comrades in Malisheve, I saw him in passing in the yard of his

1 own relative. I don't know exactly whether he stayed there because it

2 was a confused situation. Some of us went to look for weapons, and I

3 don't know whether he stayed in the village or -- but the most important

4 thing is that after the fall of the Lapusnik gorge, we did what we did.

5 And then afterwards we returned to the village.

6 Q. Okay. So just to be clear, you returned from Zborce within a day

7 or two after the fall of Lapusnik and you saw Haradin Bala there in

8 Bajince. That's your testimony?

9 A. I returned from Zborce on the day that Lapusnik fell. It was

10 after midnight probably and we found an empty village. We went to the

11 gorge and it was there that we saw the population. This is the truth.

12 And I have seen Haradin Bala either the next day or the day after that

13 because, you know, six years have passed since then when we all got

14 together as soldiers and were trying to figure out what we were going to

15 do under those circumstances.

16 Q. And is it your testimony that after you saw Haradin Bala either

17 the next day or the day of that he stayed in Bajince with you through

18 August, through September, through the fall until the end of the year?

19 Is that your testimony?

20 A. Yes, that's the truth. Maybe he may have gone away for a weekend

21 or when he may have been sick, but most of the time we've been together.

22 We've acted together.

23 Q. Now, in fact, don't you recall that towards the end of the year

24 Mr. Bala was in Luznica? Towards the end of the year 1998 into the new

25 year, Mr. Bala was in Luznica? Don't you recall that?

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1 A. No. No, I don't recall that. It can't be. If you are talking

2 about the year until the end of the year, this cannot be.

3 Q. Since you know Haradin Bala, can you give us any possible reason

4 why he would have said at the end of the year that he was in Luznica and

5 had been given leave to see his family in Bajince? That he was serving

6 in Luznica and had been given leave to go to see his family in Bajince?

7 Can you give us -- are you -- do you know any reason why he might have

8 said that at the end of the year, 1998?

9 A. I don't know. It may be a mistake.

10 Q. A mistake by whom?

11 A. No, I don't know whose mistake, but he cannot be in two places at

12 the same time. He was in Bajince. He acted there after the offensive.

13 We were together for a long time. Sometimes I was away, but it was

14 something I did within the same day. And in the evening, I returned

15 back. So I remember the place we stayed together, the room with him and

16 with other comrades.

17 MR. GUY-SMITH: If I might rise, I assume there is a basis for

18 the question as being asked.

19 MR. WHITING: Day 30, page 3086.

20 MR. GUY-SMITH: Bala said this.

21 MR. WHITING: Correct.

22 Q. Let's go back to June and July of 1998. And first of all, before

23 I ask you questions about that time period, there is a road that runs

24 from Bajince to Nekovce, up to Kishna Reka. Correct?

25 A. Yes.

1 Q. Once you reach Kishna Reka, you can either continue driving to

2 Lapusnik or you can even walk to Lapusnik. Correct?

3 A. It depends. I don't know from Kizhareke to Lapusnik to walk, I

4 think walking is the only way. It takes you about two hours because it's

5 a very steep road.

6 MR. GUY-SMITH: With all due respect, Your Honour --

7 JUDGE PARKER: Mr. Guy-Smith.

8 MR. GUY-SMITH: -- if I might ask my esteemed colleague to

9 double-check his reference site because I see that the transcript goes up

10 to page 84 on Day 30.

11 MR. WHITING: I'm sorry it's Day 34 --

12 MR. GUY-SMITH: Page?

13 MR. WHITING: 3086.

14 MR. GUY-SMITH: Thank you.

15 MR. WHITING: If the witness could be shown image 8 of P1,

16 please. We have -- yeah, no that's fine. And if it could be placed on

17 the ELMO, please.

18 Q. Sir, if you could look at that map, if it could be placed on the

19 ELMO, please. It's probably easier if you look at it on your -- to your

20 left, not on the computer. Don't -- if -- it's easier if you go ahead

21 and look at it. Now, this is an aerial photograph of Lapusnik. Do you

22 recognise it?

23 A. More or less.

24 Q. The -- in the lower right of the -- of the image, do you see a

25 few houses there?

1 A. Where do you mean?

2 Q. The lower right.

3 A. Here, this corner here?

4 Q. Right, those houses. Those houses belong to Kishna Reka. Right?

5 A. It is possible. I don't know.

6 Q. Well, this road that's right there that we see going from the top

7 of the image between 489000 and 489500 down to the lower right of the

8 image, that road is the road that goes to Kishna Reka, Nekovce, Bajince.

9 Correct?

10 A. The road up here?

11 Q. No, no, no. That's the Peja-Pristina road. The road that comes

12 -- that road. That road is the road that goes to Kishna Reka, Nekovce,

13 Bajince. Correct?

14 A. This here?

15 Q. Yes.

16 A. Yes.

17 Q. Okay. That's the road that goes to Kishna Reka-Bajince.

18 Correct?

19 A. Yes, I think so. Yes.

20 Q. I'm sorry. Your previous answer wasn't picked up by the

21 interpreters. Now -- and that is in fact Kishna Reka in the lower right

22 of the image there, those houses that you pointed at. Those houses are

23 Kishna Reka. Correct?

24 A. It is part of Kishna Reka and it could also be part of Komorane.

25 Q. Now, it would not take two hours, would it, to walk from those

1 houses to Lapusnik, would it?

2 A. It depends how you travel because now by car you can go very

3 fast. There are newly built roads. But at that time you had to go

4 through the gorge, through the other side of the gorge and get up here.

5 Q. No, I'm talking about walking. You could walk from those houses

6 in the lower right of the image to Lapusnik in a short time. Correct?

7 A. No. First of all, this part here, these houses you referred to,

8 I'm not sure whether it is Kishna Reka indeed because they can be houses

9 of Komorane, of old Komorane as they call it. Kishna Reka should be more

10 in the inner part. I have gone to Berisa through this part on foot and

11 it took me about two hours because of the steep road. I'm speaking of my

12 experience.

13 Q. I'm not sure if you focussed on my question. My question is:

14 Whatever village those houses belong to in the lower right of the image,

15 it would not take two hours to walk from those houses into Lapusnik.

16 Right?

17 A. No, that's not correct.

18 Q. Your testimony is it would take two hours to walk from those

19 houses to the village of Lapusnik?

20 A. I'm telling you that it depends who is walking. As I'm a fit

21 person, it takes me about one hour and a half to get there. It's not

22 easy to walk up there.

23 Q. Okay.

24 MR. WHITING: You can -- that can be taken away. I'm done with

25 that map.

1 Q. Now, turning to June and July, you testified that you were not in

2 the KLA at that time because you did not have a gun.

3 A. Yes, that's correct. Until the 26th of July I wasn't a soldier

4 of the KLA.

5 Q. And that was because you did not have a gun. Correct?

6 A. Yes, that was the reason.

7 Q. There were KLA soldiers in your village, correct, in June and

8 July of 1998?

9 A. No, there weren't.

10 Q. There were no KLA soldiers in Bajince in June and July of 1998?

11 A. No, there weren't. There were soldiers from Bajince serving at

12 another point.

13 Q. Were there KLA soldiers in Kishna Reka in June and July of 1998?

14 A. I don't know.

15 Q. Were there KLA soldiers in Nekovce in June and July of 1998?

16 A. I knew one person who was from Nekovce. I don't know where he

17 was stationed, at what point, but I knew a person from Nekovce who was a

18 soldier.

19 Q. There were KLA soldiers in Shale, Sedlare, correct, in June and

20 July of 1998?

21 A. I'm really sorry, but I don't know.

22 Q. During this time, June and July of 1998, that was a time when

23 people were joining the KLA, correct? If they had a weapon or if they

24 could get a weapon, they were joining during that time, June and July of

25 1998. Right?

1 A. Yes, those who felt themselves as Albanians, yes.

2 Q. Now, you were asked by Mr. Guy-Smith about how many times you saw

3 Haradin Bala in your village during June and July of 1998, and your

4 response was this, this was yesterday: "I may have seen him four or five

5 times. I cannot be sure because I know I have seen him later as well."

6 So it's hard to be sure when exactly things happened. Correct?

7 A. As I already told you, it could be four or five times. It could

8 be four times and one time later on. I don't know the exact number, but

9 as I said it was four or five times that I saw him, that I noticed him.

10 Q. And in fact, the conversation, the brief conversation that you

11 recounted -- that you say you remember with Haradin Bala about Luznica,

12 that could have happened later, couldn't it?

13 A. No because it is connected with the flour, with the food that he

14 brought about -- for his family. After the 26th of July, I was no longer

15 interested who was bringing flour because I became a soldier. Someone

16 else took up the responsibility for the village.

17 Q. You were still in the village, weren't you?

18 A. Which period are you referring to?

19 Q. After the 26th of July. You were still in Bajince, weren't you?

20 A. As I said earlier, we were for two or three weeks around Bajince.

21 We didn't contact with co-villagers except for some young men who brought

22 us food.

23 Q. So food was -- continued to be an issue, of course, after the

24 26th of July?

25 A. Of course.

1 Q. Now, you never saw Haradin Bala in Luznica in June and July 1998.

2 Correct?

3 A. I'm sorry, but I was never at Luznica.

4 Q. You were never in Luznica in June and July of 1998. Correct?

5 You --

6 A. Not even now. Until recently, I've never been to Luznica.

7 Q. Did you know that to travel to Luznica you had -- from Bajince,

8 you had to drive down to Shale, Sedlare, then to Klecka and then to

9 Luznica? Did you know that at the time?

10 A. I'm not quite sure whether the road was open at that time and

11 whether you could go by car. I'm really not sure because I never went

12 there through Shale.

13 Q. When Haradin Bala came to Bajince during June and July of 1998,

14 how did he come, if you know?

15 A. I saw him once when he came with a car - I think it was a Lada -

16 that time when I asked him about the flour.

17 Q. When is the first time you told the story about remembering this

18 conversation with Haradin Bala?

19 MR. GUY-SMITH: I think I will interpose an objection to the

20 characterisation of the witness's testimony. I don't know whether or not

21 Mr. Whiting was being, shall we say, dramatic, in the use of the term

22 "story" or not.

23 MR. WHITING: I didn't mean to be dramatic.

24 Q. When is -- when is the first time you recounted this conversation

25 about Luznica with Haradin Bala? When is the first time you told

1 somebody about that?

2 A. I didn't understand the last part. If you could repeat it,

3 please.

4 Q. I certainly can, and I'll try to make it more clear. You -- when

5 is the first time you told somebody about this conversation you say you

6 had with Haradin Bala about Luznica?

7 A. I don't know if I discussed it with anybody except with the

8 Defence team when I gave them my statement. I don't remember discussing

9 it.

10 Q. And when did you give your statement?

11 A. Approximately four months ago.

12 Q. In February of 2003, you knew that Haradin Bala had been arrested

13 by the Tribunal. Correct?

14 A. Yes. I heard about it, if he was arrested in February 2003.

15 Q. And I take it you have followed the case in the newspapers or on

16 television in Kosovo.

17 A. You're wrong.

18 Q. You haven't at all followed this case?

19 A. No, not at all I haven't followed it.

20 Q. You weren't interested in what Haradin Bala was being charged

21 with and what was happening to him?

22 A. There's a difference here. Personally I didn't have the

23 possibility to follow the trial because it is sometimes shown on

24 television in the evening. I work till 6.00, 7.00, then spend with my

25 children two or three hours and then go to sleep in order to be able to

1 wake up at 6.00 in the morning for work.

2 Q. But you knew when Haradin Bala was arrested that he was being

3 arrested for -- and he was accused of committing crimes in Lapusnik in

4 the summer of 2000 -- of 1998. Correct? You certainly knew that, right?

5 A. Yes, I heard about it.

6 Q. And you heard about that when he was arrested, correct, sometime

7 in 2003?

8 A. I'm really sorry. I did hear that he was arrested, but I really

9 don't know whether I heard on the very day of the arrest or whether I

10 heard later from a friend of mine. But what I know is I heard about it.

11 Q. Whether it was on the day of the arrest or a day or two later, it

12 was around the time that he got arrested that you heard about it.

13 Correct?

14 A. I'm not sure. Please don't take me to where I'm not sure.

15 Q. Do you think you heard about it in 2003, what he was arrested

16 for, that he was arrested for committing crimes in Lapusnik? Do you

17 think you heard about that sometime in 2003?

18 A. It is possible.

19 Q. But you're not even sure about that. Correct?

20 A. Just a minute. I'm really sorry. I am sure that I heard about

21 his arrest, but as I said earlier I don't remember dates and periods of

22 time except for those that are really important for me.

23 Q. Now, you've just told us that four months ago you made a

24 statement to the Defence lawyers, and in that statement you told them

25 about what happened to you and to Haradin Bala in 1998. Correct?

1 A. Yes, yes. What happened in 1998, that's what I told them. And

2 there I based myself on a very important day for myself, and that was

3 when I got my weapon.

4 Q. And you were careful to be accurate and truthful with them,

5 correct, when you talked to them four months ago?

6 A. It's not that I'm being careful whether to be accurate or not;

7 this is the truth. These are things that I have experienced and there's

8 no way I could be wrong about them.

9 Q. Well, in fact, didn't you tell the Defence lawyers four months

10 ago that you joined the KLA at the beginning of May 1998?

11 A. No, never. I assisted the KLA, but I wasn't a KLA soldier.

12 Q. Well, there's a clear difference, and you've made that clear

13 difference here in court, between assisting the KLA and joining the KLA.

14 Right?

15 A. I never said I was a soldier, member of the KLA, before the 26th

16 of July.

17 Q. Okay. See, because we get -- the Defence lawyers give us a

18 summary of what you're going to testify to. We don't get your statement,

19 but we get a summary. And according to your summary it says: "The

20 witness will testify he joined the KLA at the time the Serb forces

21 launched their attack on Lapusnik in the beginning of May 1998."

22 Did you tell the Defence lawyers that?

23 A. This is wrong. This is either your mistake or their mistake. I

24 have never said I joined the KLA in May because the offensive on Lapusnik

25 started on the 26th of July.

1 Q. Now, didn't you also tell the Defence lawyers that in fact

2 Haradin Bala moved his family to Bajince before the 9th of May, 1998?

3 A. No, I don't remember this at all. I don't recollect this date at

4 all. I never knew the exact date when his family arrived. And as I told

5 you, I relate everything to that crucial date that I mentioned in my

6 life.

7 Q. Well, in this summary it says -- and I'll just read it to you:

8 "Because of the danger of Serb attacks, the accused Haradin Bala moved

9 his family to Bajince for shelter. The witness will testify that this

10 happened prior to the Serb offensive on Lapusnik."

11 And I checked to make sure that was referring to the 9th of May,

12 1998. So are you sure that you didn't tell the Defence lawyers that

13 Haradin Bala moved his family to Bajince before the 9th of May, 1998?

14 A. If someone insisted on the 9th of May, you may say so. I don't

15 know how they have linked it, but I simply said that he moved his family

16 because the family was in danger in Korretice where it was living, and

17 that place was close to the road, very exposed to danger, and that the

18 Serbs might have intervened quickly there. So for the family to escape

19 the danger, he moved it to Bajince. I didn't say the 9th of May. If

20 they insisted on the date, I don't know how they came up with the date,

21 but I didn't say that date.

22 Q. Well, what is your testimony about what happened? What is your

23 testimony now about what happened, about when he moved the family to

24 Bajince?

25 A. He moved his family to Bajince before the 26th of July. Whether

1 it was three weeks, two weeks, or two months ago, I don't know for sure.

2 But I know it was there for that date.

3 Q. And you first met Haradin Bala as the husband of Mrs. Bala, who

4 was from the village of Bajince. Correct?

5 A. Yes, correct. I didn't know him before. I knew him only by

6 sight and I knew that he was married to a lady from that village, but I

7 didn't have any closer contact with him.

8 Q. And you don't remember when he moved his family to Bajince?

9 That's your testimony now, that you don't remember when he moved his

10 family to Bajince?

11 A. I remember that his family moved there before the 26th of July,

12 but as to when exactly it was I cannot tell you for sure.

13 MR. WHITING: I have no further questions.

14 JUDGE PARKER: Thank you, Mr. Whiting.

15 Mr. Guy-Smith.

16 Re-examined by Mr. Guy-Smith:

17 Q. I want to matter sure that matters are clear, and if I have made

18 a mistake in any regard I apologise and I want to make sure that we

19 understand what you remember, what you experienced, and what did you did

20 not, based upon what -- the questions you've been asked both by myself as

21 well as by Mr. Whiting. Okay.

22 On July 26th, 1998, do you recall whether or not there was an

23 offensive in which the -- what has been called the Lapusnik gorge fell?

24 A. Yes, I remember it very well.

25 Q. Before the Lapusnik gorge fell, where were you?

1 A. I was in Bajince village.

2 Q. While you were in Bajince village, did you have occasion to see

3 Haradin Bala's family or not?

4 A. Yes. Yeah, I saw them in passing, outside in the yard.

5 Q. When you were at your village before the fall of the Lapusnik

6 gorge on July 26th, did you have a conversation with Haradin Bala or not

7 in which the topic of food arose?

8 A. Yes, yes, I did. It was then that we talked about that.

9 Q. Apart from having a conversation with Mr. Bala concerning the

10 topic of food, did you have occasion to see Haradin Bala in your village

11 of Bajince before the fall of Lapusnik gorge?

12 A. I think I saw him two or three times, apart from that

13 conversation I had. And we have met many more times later.

14 Q. When did you become a member of the KLA as a soldier?

15 A. On the 26th of July, 1998, in the morning of that day.

16 Q. Why didn't you become a member of the KLA as a soldier before

17 July 26th in the morning?

18 A. Because there weren't enough weapons in the territory where we

19 lived. It was hard for us to get a weapon. We had to go to Albania to

20 be able to fetch one, and it was very difficult trip to do.

21 Q. Have you had the opportunity to have a weapon before the 26th of

22 July, would you have joined the KLA before that time?

23 A. Yes, certainly.

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

25 MR. GUY-SMITH: But I do have one comment to make with regard to

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1 the matter on page 3086 in which a statement is attributed to my client

2 which is a hearsay statement made by someone else. I have some concerns

3 about the manner in which the question was posed because it assumes that

4 in fact the statement was made. I understand the extent to which hearsay

5 is allowed in these proceedings, but I ask the Court in its consideration

6 of this particular question and answer, to the extent it's going to

7 impact at all with regard to this witness's testimony, to take heed and

8 care.

9 JUDGE PARKER: Thank you very much, sir. That is the end of the

10 questions that are asked of you by counsel. We thank you for your

11 attendance. You are now free to return to your home and work.

12 THE WITNESS: [Interpretation] Thank you.

13 Goodbye.

14 [The witness withdrew]

15 JUDGE PARKER: We note your observation, Mr. Guy-Smith, and I

16 take it this is probably a convenient time or would you think it useful

17 to spend quarter of an hour with the next witness?

18 MR. GUY-SMITH: I think this is a convenient time.

19 JUDGE PARKER: Very well. We will have the first break now,

20 resuming at 10 minutes to 4.00.

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

22 --- On resuming at 3.53 p.m.

23 JUDGE PARKER: Yes, Mr. Guy-Smith.

24 MR. GUY-SMITH: Yes, prior to us calling our next witness, who

25 Mr. Harvey will be questioning, I have a brief comment to make and I've

1 been requested specifically by Mr. Bala to make this comment, which is

2 that he would greatly appreciate when any statements are attributed to

3 him that if they're not statements that he made directly that the author

4 of the statement or where the statement came from be identified, because

5 it caused him some concern and he did not feel it appropriate in his

6 mind.

7 I have raised the matter with Mr. Whiting, I have told him I

8 would be raising the matter with the Court before we started. I think

9 Mr. Whiting understands our position and I believe that I understand his

10 position with regard to the manner in which he chooses to ask questions.

11 But since the issue was raised by Mr. Bala and he specifically asked he

12 to raise it with the Court, I am doing so.

13 JUDGE PARKER: You anticipated what would have been the Chamber's

14 reaction in what you've gone on to say. And could I observe that with

15 respect to the comment you made before we broke, the matter that was the

16 subject of the question was in evidence. It therefore forms properly the

17 basis for questioning. What, if any, weight might be attached to it is a

18 very different question and that we will have to consider at the end of

19 evidence.

20 MR. GUY-SMITH: I appreciate both that as well as the Court's

21 comments.

22 JUDGE PARKER: The next witness is.

23 MR. HARVEY: Mr. Kadri Dugoli.

24 JUDGE PARKER: Thank you, Mr. Harvey.

25 [The witness entered court]

1 JUDGE PARKER: Good afternoon, Mr. Dugoli. Would you please read

2 aloud the affirmation that the on the card that is given to you now.

3 THE WITNESS: [Interpretation] Good afternoon, sir. I solemnly

4 declare that I will speak the truth, the whole truth, and nothing but the

5 truth.

6 JUDGE PARKER: Thank you. Please sit down. Mr. Harvey has some

7 questions for you.

8 Mr. Harvey.

9 MR. HARVEY: Thank you, Your Honour.

10 WITNESS: KADRI DUGOLI

11 [Witness answered through interpreter]

12 Examined by Mr. Harvey:

13 Q. Good afternoon, Mr. Dugoli.

14 A. Good afternoon.

15 Q. I take it from your reply that you're hearing my questions

16 clearly and you are able to follow the translation.

17 A. Yes, I am.

18 Q. Where do you live, in which village?

19 A. I live in Nekovce, in Drenoc municipality.

20 Q. And have you lived there all of your life?

21 A. Yes, with the exception of a time, that is two years, I was

22 staying with my uncles in Korretice e Eperme at Haradin's father's.

23 Q. And who is or was your uncle?

24 A. His name is Selman Bala. He is the father of Haradin Bala. My

25 mother and he were brother and sister.

1 Q. So that makes you and Haradin first cousins, if I'm right?

2 A. I don't know what you're saying about first cousins, but I know

3 that he is the son of my uncle. Yes, I think you're right.

4 Q. Okay. And I hope you won't find this offensive, but I think

5 you're older than he is?

6 A. No -- you think older than Haradin?

7 Q. Yes.

8 A. Yes, I am some seven years older than him I think.

9 Q. And as children, did you grow up together, given that age

10 difference?

11 A. Yes.

12 Q. And did your families visit each other on a frequent basis?

13 A. Yes. On a very frequent basis. Sometimes I went to visit his

14 family, sometimes he came to visit my family.

15 Q. And there came a time in your life, did there, when you had to do

16 military service?

17 A. Yes.

18 Q. Do you remember which years those were?

19 A. 1969, 1970, and then I was released in 1971. The military

20 service lasted 18 months.

21 Q. And after that, do you know where Haradin was working, or if he

22 was working.

23 A. Haradin was working before he got sick. He was working in a

24 construction enterprise in Drenoc, but I don't know the year when he

25 started work there.

1 Q. Do you remember him falling ill?

2 A. Yes, very well.

3 Q. What happened there that you remember?

4 A. I remember that Haradin was ill. He was complaining of the left

5 side of his eyes and hand and then -- arm. And then after a week they

6 took him to neuropsychiatric hospital I think and they thought he had

7 some sort of paralysis.

8 Q. Who took him there?

9 A. I don't know who took him there, but I know that I went to visit

10 him after five or six days and that he couldn't move. I stayed for half

11 an hour with him and then I went home.

12 Q. So you visited him in hospital. I know it's hard to remember the

13 dates exactly --

14 A. Yes.

15 Q. Do you remember roughly which year that would have been in?

16 A. It was before the 1990s. To tell you the truth, I cannot

17 recollect when it was because a long time has passed since then.

18 Q. Was there only one occasion when you visited him in hospital or

19 more than one?

20 A. I was there two times.

21 Q. And was the second time during that same year or was it at a

22 different period altogether?

23 A. During the first time I visited him in hospital. After that, I

24 visited him on two other occasions. I don't know what year it was. He

25 was again in hospital in Pristina. I think he was in the intensive care

1 unit, and there they told him that he had a heart infarction or attack,

2 as you might say, but that he was in a dangerous state. He couldn't

3 leave the room for five or six days and we were not allowed to visit him

4 there.

5 Q. So you've told us that the first time he was taken to hospital

6 was you believed before the 1990s. Was this second occasion also before

7 the 1990s or sometime in the 1990s?

8 A. I don't remember very well, but I think it was -- the first time

9 was the 1990s. The second time was not after a long time, but it was

10 probably in the same year. I know that he was very sick and he was

11 hospitalised.

12 Q. So we have two periods of hospitalisation. Are you aware whether

13 he was ever hospitalised on any other occasion after that?

14 A. I think he went to Albania. He was hospitalised in Albania

15 before the war, and I know that he was again hospitalised after the war

16 and again for his heart condition.

17 Q. Just dealing with the one before the war, taking the war as being

18 -- as beginning in 1998, do you have any sense today of how long before

19 the war, months or years?

20 A. If I'm not mistaken, it may have been in 1992/1993. The others,

21 I don't remember. I know that they were before the 1990s.

22 Q. Very well. Thank you. I'd -- I'd like to try and get my voice

23 working properly first. Now, let's try that one again. I'd now like to

24 move forward to the war.

25 Did you know Haradin's family?

1 A. Very well.

2 Q. And did you know where his wife came from, which village her

3 family came from?

4 A. His wife came from Bajince village, Lipjan municipality.

5 Q. Now, once the war started, did his family stay in Korretice e

6 Eperme?

7 A. It was sometime -- I think it was on the 8th of May when Haradin

8 brought his family to stay with my own family. So they stayed in my

9 home. He stayed there -- they stayed there for some two weeks.

10 Q. [Previous translation continues]...

11 A. Yes.

12 Q. And when you say his family, about how many family members did he

13 bring?

14 A. They are a large family, but his narrow family with his two

15 brothers were staying at my house, whereas some other brothers and their

16 mothers stayed with my brother.

17 Q. And when you say they stayed with your brother, was that also in

18 the village of Nekovce?

19 A. We live very close with my brother. We share the same wall,

20 maybe 50, 60 metres away.

21 Q. [Previous translation continues]... close family to you, did he

22 -- did he stay with you or did he go off himself?

23 A. That night he stayed there. He was tired. On the next day, he

24 set off.

25 Q. And how long after that roughly, if you remember, how long was it

1 before you saw him again?

2 A. Maybe after four or five days. Haradin, five or six, he came

3 back to me and he brought food supplies for his family.

4 Q. And did he then go away again?

5 A. Yes.

6 Q. And when was -- about how long after that did you see him again?

7 A. He came back another time -- or two times after he left the

8 family there, and then after two weeks he came and took his family to

9 Bajince with his brother and some food supplies that were still there.

10 He took them -- he took them to Bajince.

11 Q. And after he'd taken his family to Bajince, how long after that

12 was it before you saw him again?

13 A. I saw him at the end of May in Bajince village. I went there and

14 stayed for less than an hour. We talked together. We lit a cigarette.

15 He complained to me about his health. He was ill. He always took his

16 medicine, I don't know what kind of medicine.

17 Q. He was ill but he was still smoking?

18 A. He has never quit smoking. I don't know about now, whether he

19 still smokes, even though the doctor has recommended him to quit smoking.

20 I think he takes after his father, who never quitted smoking and was

21 hospitalised a couple of times.

22 Q. I know. We've tried to stop him, too; it doesn't work, does it?

23 So that time when you saw him at the end of May in Bajince, did you see

24 him with his family or separate from his family?

25 A. He was with his family, but I went there, stayed for a while with

1 his family. And when I left he was staying in the shade because he could

2 never stand in the sun. He was staying in the shade. We stayed together

3 for some time, then I went home. I don't know what he did.

4 Q. You say he couldn't stay in the -- he couldn't stand the sun.

5 A. No, never.

6 Q. Did you ever observe him -- well, let me put that another way.

7 Has he -- how did he tolerate the heat in the summer?

8 A. Since he was ill for the first time, he always took an umbrella

9 with him to keep it when he was hot and it was sun.

10 Q. So you would see him walking along in the sun with an umbrella up

11 over his head?

12 A. He used -- he didn't walk a lot, and when he did he always took

13 with him an umbrella, but usually he drove.

14 Q. Do you happen to remember what sort of car you saw him driving?

15 A. When do you think?

16 Q. Thank you for putting it that way. When did you see him driving

17 a car?

18 A. After the war -- I meant not a real car. I meant a cart. It is

19 horse-drawn.

20 Q. When did you see him with a buggy or a horse-drawn cart? When

21 was that?

22 A. All the time -- every time I saw him, he was travelling in his

23 buggy because he couldn't walk. He was very ill.

24 Q. Does that go for before the war as well as after the war?

25 A. Before the war, after the war he had a car; his brother bought it

1 for him. So the time he took me with him when I wanted to go.

2 Q. [Previous translation continues]... horse-drawn buggy; after the

3 war, his brother bought him a car?

4 A. Yes. Yes.

5 Q. Finally this: Did you ever join the KLA?

6 A. No, I couldn't join the KLA, but I rendered as much assistance as

7 I could to it. I didn't have a uniform and I never joined it. This is

8 why I am saying I didn't join, because in one way or another all the

9 Albanians assisted the KLA.

10 Q. Fine. If you would remain there, please, there will be some more

11 questions for you. Thank you, sir.

12 JUDGE PARKER: Mr. Mansfield.

13 MR. MANSFIELD: No question, thank you.

14 JUDGE PARKER: Mr. Topolski.

15 MR. TOPOLSKI: No.

16 JUDGE PARKER: Mr. Black.

17 MR. BLACK: Thank you, Your Honour.

18 Cross-examined by Mr. Black:

19 Q. Hi, Mr. Dugoli, I'm standing to your right. My name is Mr.

20 Black. Good afternoon.

21 A. Good afternoon.

22 Q. I gather from what you've testified to here today that you're a

23 cousin with Haradin Bala. That's correct?

24 A. Yes.

25 Q. And in addition to that would you say that you're also friends

1 with him?

2 A. Very close friends indeed.

3 Q. Did Haradin Bala ever talk to you about his determination to join

4 the KLA in 1998?

5 A. No, we didn't talk about that.

6 Q. So you --

7 A. We were all determined to join the KLA but we couldn't, all of

8 us.

9 Q. Well, you mentioned that, that you yourself weren't able to join

10 the KLA; why was that?

11 A. I wasn't able to join the KLA because there weren't sufficient

12 weapons. I couldn't go and get one or buy one, and that's why I didn't

13 join.

14 Q. And you said you rendered assistance in other ways. Can you give

15 me any examples of how you assisted the KLA?

16 A. Yes. In the beginning, we stood guard duty together with the

17 soldiers, and we helped them in observing. We also helped them with

18 food. We would bring them food and water to the mountains.

19 Q. Okay. And do you remember when you first learned that Haradin

20 Bala had joined the KLA?

21 A. Only when he brought his family at my place. He told me that he

22 was going to Lapusnik. It was in the beginning of May.

23 Q. Do you remember the words that he used? Did he describe his

24 motivation in any way?

25 A. No.

1 Q. Okay. Now, you talked earlier about a couple incidents in May

2 1998 when you saw Haradin Bala. Do you remember that? Do you remember

3 testifying about that?

4 A. Yes.

5 Q. And just to make sure that I have the chronology correct, you

6 said the first time I believe was on the 8th of May, 1998. Is that

7 right?

8 A. I said it was between the 6th and the 8th of May, 7th, 8th, 6th,

9 I don't remember the exact date. This is what I said earlier. So it was

10 between the 6th and the 8th of May. I don't remember which day it was

11 exactly. We celebrate a holiday back home which is between the 6th and

12 the 8th of May. And that's why I remember this date because on the 9th

13 of May, many refugees came to our village and when Haradin saw that many

14 people were staying in my house, he then decided to take his family to

15 his in-laws.

16 Q. Well, let me just go one step at a time to make sure I'm clear

17 about all this. Do you remember perhaps which day of the week it was? I

18 know you don't know whether it was the 6th the 7th, or the 8th, but do

19 you happen to remember what day of the week it was?

20 A. No.

21 Q. Okay. So that holiday that you celebrate during that time, it

22 doesn't always -- and I'm just asking, I don't know, it doesn't always

23 fall on a Saturday or always fall on a Tuesday or anything like that?

24 A. It falls on an exact date, regardless of the day. It's on the

25 6th, and it's celebrated on the 6th, 7th, and 8th of May.

1 Q. Thank you. Now I understand. And your testimony is that you

2 first saw Haradin Bala in May 1998 sometime during that holiday, during

3 those three days, is that right, but you don't remember which day in

4 particular?

5 A. I don't understand the question.

6 Q. Let me try to be more clear about it. Your testimony is that

7 during that holiday that's celebrated on the 6th, 7th, and 8th, at some

8 point on those three days you saw Haradin Bala. Am I correct about that?

9 A. I didn't meet with him. What I said was that he brought his

10 family from Korretice village to my village, village of Nekovce, his

11 immediate family and his extended family. In my place, Haradin's family

12 was staying and the families of his two brothers.

13 Q. Okay. I understand. And you -- but you personally saw him. You

14 met with him in that sense that you saw him and actually talked to him.

15 Right?

16 A. Yes, we talked.

17 Q. Do you remember when Haradin Bala and his family arrived, do you

18 remember how they arrived? Did they arrive in -- all together in one

19 vehicle or in several vehicles? What kind of vehicles? Do you remember

20 anything about that?

21 A. Some came in a tractor, some on horse-drawn carts, some on foot.

22 Q. You don't remember any cars at that time?

23 A. We didn't have any other vehicle except for tractors.

24 Q. When you say "we didn't have any other vehicle except for

25 tractors," who do you mean by "we"?

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1 A. I mean Haradin and myself, his family and my family.

2 Q. What about -- when you say "Haradin's family," what about his

3 brothers? Did any of his brothers have cars before the war or during the

4 war?

5 A. I don't know. I don't remember. A brother of his who was in

6 Italy, he had but he would buy cars and sell cars.

7 Q. Did you ever see Haradin Bala in any of those cars?

8 A. You mean in his brother's cars?

9 Q. Yes.

10 A. I don't know. Sometimes, yes, we drove together with his

11 brother, who was working abroad in Italy.

12 Q. Okay. And just to be clear on the time, that was before or

13 during the war. Correct?

14 A. Before the war. During the war, his brother was in Italy and his

15 car was not there. I refer to Haradin's oldest brother; he had the car.

16 Q. Okay. Do you remember what kind of car he had?

17 A. He once had an Alpha Romeo and then a Kadett. I don't really

18 know all the makes.

19 Q. And you testified that Haradin Bala -- on this first occasion he

20 stayed the night and then he left the next day. Right?

21 A. Yes, in the morning. He left my house in the morning.

22 Q. Do you remember how he left, by what mode of transportation?

23 A. I don't remember whether he went on a tractor or other type of

24 vehicle, but I know that he didn't go on foot.

25 Q. Okay. And then the next time that you saw him I think you said

1 was four to six days later. Is that right?

2 A. Yes, that's right.

3 Q. I think you told us how long he stayed -- well, maybe you didn't.

4 How long did he stay at your house on that occasion?

5 A. If we are talking about the second time, he spent the night in my

6 house. He brought food supplies for his family, and he brought a box of

7 cigarettes for his wife because she smokes, too. He taught her how to

8 smoke. It was a box of Holiday cigarettes.

9 Q. Do you remember anything about the food supplies that he bought

10 -- brought, excuse me? What did he bring?

11 A. He brought flour, 4 or 5 litres of oil, one kilogramme of tea, 5,

12 6 kilogrammes of sugar, pasta, soup, the cigarettes I mentioned.

13 Q. Okay. And to go back a bit in your testimony, I think you

14 mentioned at some point he went to your in-laws because you had too many

15 people at your house. Is that right?

16 A. Yes, because after the 9th of May, after it started -- there were

17 refugees even before the 9th of May, but after this day people began to

18 fled -- to flee their houses. And there were many staying in my house.

19 And when he saw that there were too many staying in my house, he took his

20 family to his in-laws in Bajince. We were about 62 persons in my house,

21 and in total I only had five rooms. There wasn't space enough for all of

22 us, and that's why he took his family.

23 Q. Okay. I misunderstood. I thought you had said that he went to

24 stay with your in-laws, but you meant his in-laws in Bajince. Correct?

25 A. Yes, that's correct.

1 Q. Okay. Thanks. And you said that was two weeks after this second

2 visit. Is that right?

3 A. Not two weeks after his second visit, but two weeks after he

4 brought his family for the first time in my house, which I said was about

5 the 6th or 8th of May. And then after two weeks, he took his family to

6 his in-laws.

7 Q. And how far approximately is it to Bajince where his in-laws

8 lived?

9 A. My village and Bajince village are adjoined. From my house to

10 Haradin's in-laws, the distance is approximately 3 to 4 kilometres.

11 Q. Okay. And do you remember how they actually made the move over

12 to Mr. Bala's in-laws?

13 A. Haradin's brother took that flour that remained and took it to

14 his in-laws. Some went on foot, some in tractors, some in horse-drawn

15 carts.

16 Q. Did you go with him?

17 A. No.

18 Q. Thanks very much for your patience with me.

19 MR. BLACK: No further questions, Your Honour.

20 JUDGE PARKER: Thank you, Mr. Black.

21 Mr. Harvey.

22 Re-examined by Mr. Harvey:

23 Q. Just one question please, Mr. Dugoli. When Mr. Bala came to your

24 house bringing flour and other goods, other food, did he come alone?

25 A. He came with a friend in a car, Lada make, and he brought the

1 flour because he wasn't able to load or unload that sack of flours --

2 flour because it weighed 50 kilogrammes.

3 Q. I have no further questions, Mr. Dugoli. Thank you very much for

4 your attendance here today.

5 A. You're welcome.

6 JUDGE PARKER: Thank you for your assistance. That completes

7 your questioning. You may now leave and return to your home. Thank you.

8 THE WITNESS: [Interpretation] Thank you.

9 [The witness withdrew]

10 MR. HARVEY: We will now play musical chairs again.

11 JUDGE PARKER: Mr. Guy-Smith.

12 MR. GUY-SMITH: We will be calling the last witness of the day,

13 Mr. Thaqi.

14 JUDGE PARKER: Thank you.

15 MR. GUY-SMITH: While we are waiting in this brief moment I

16 should inform the Chamber that we have potentially two additional

17 witnesses for tomorrow. Apart from that, there will be no further live

18 witnesses called on behalf of Mr. Bala. There is one matter that remains

19 which we are working out with the Prosecution, which is the statement of

20 a gentleman whose name is Howard Tucker and he is submitting a 92 bis

21 statement in regard of Mr. Tucker. At the conclusion of today's

22 proceedings, I would like to, after agreement with the Prosecution,

23 introduce into evidence those medical records that we have been able to

24 obtain with regard to Mr. Bala's medical history.

25 JUDGE PARKER: Thank you.

1 [The witness entered court]

2 THE WITNESS: [Interpretation] My greetings.

3 JUDGE PARKER: Mr. Thaqi, good afternoon. Would you please read

4 aloud the affirmation on the card that's shown to you.

5 THE WITNESS: [Interpretation] Good afternoon. I solemnly declare

6 that I will speak the truth, the whole truth, and nothing but the truth.

7 JUDGE PARKER: Thank you. Please sit down. Mr. Guy-Smith has

8 some questions for you.

9 WITNESS: ALI THAQI

10 [Witness answered through interpreter]

11 Examined by Mr. Guy-Smith:

12 Q. Good afternoon, Mr. Thaqi.

13 A. Good afternoon to you.

14 Q. How are you today?

15 A. Very well, thank you.

16 Q. Excellent. How old are you, sir?

17 A. 48.

18 Q. Are you presently working?

19 A. No. I am in the building trade, and I work privately.

20 Q. Do you know Haradin Bala?

21 A. From the moment I was born.

22 Q. Well, I was going to ask you how long you've known him. Since we

23 know you're 48, I guess you've known him for quite some time.

24 A. Yes, that's correct.

25 Q. Where do you live, sir?

1 A. In Lapusnik, in my birthplace.

2 Q. Do you know Haradin Bala's family, by that I mean his father,

3 mother, and brother?

4 A. I know all of them. Haradin's mother is my sister.

5 Q. What did Haradin's father do?

6 A. Haradin's father was of a poor health. He had problems with his

7 lungs. He was a singer, a rhapsodic singer. He sang Albanian folk

8 songs.

9 Q. When you say he was a singer, a rhapsodic singer, was he known

10 throughout your area or was this just something he did privately?

11 A. How shall I put this? He lived from singing, from this

12 profession. Usually in our country they sing at weddings, and he also

13 participated in different festivals.

14 Q. Before the war, do you know if Haradin Bala worked?

15 A. Yes. He completed primary school. I don't know if he completed

16 secondary school, electro-technical school, he went for a year or two,

17 and then he worked at a building trade company.

18 Q. Do you know how long he worked at that building trade company?

19 A. I don't know exactly. Perhaps until the time when workers were

20 dismissed from work.

21 Q. Could you tell us about what time that was, if you know?

22 A. I don't know. I don't know for sure. It must have been I think

23 1987. I don't know exactly when.

24 Q. Did Haradin Bala follow in his father's footsteps when it came to

25 song?

1 A. No, he couldn't sing. He tried but he couldn't. He was sick

2 almost all the time. Since he was a child, he started smoking and he

3 left it to me as well as a gift. I learned from him to smoke because, as

4 I said, all my life I have been very close to him. I haven't seen him

5 only for these last two years. I grew up under his umbrella, literally

6 speaking, which he always carried with him.

7 Q. Well, if he didn't sing, did he perchance play any musical

8 instruments?

9 A. Yes, but he didn't play it very much because he was sick. We

10 both gave it a try, myself and him, but we weren't successful.

11 Q. You mentioned that he was very sick. Could you tell us when the

12 first time is that you can recall him being very sick.

13 A. We are talking about Haradin?

14 Q. That's correct.

15 A. Haradin -- I think he was ill all -- during all the time, but in

16 the 1990s, somewhere in the -- sometime in the 1990s, he became very

17 sick. The first time it happened, he was taken to the neuro-psychiatric

18 hospital. I think his left hand and arm were paralyzed. He stayed there

19 for some time, then he had a heart attack, as the doctor said, and this

20 happened sometime in the 1990s. In 1992 he got ill in my own house. I

21 took him - and I say this in full responsibility because a son of mine

22 was born in 1992 on the 21st of January - and when Haradin got sick in my

23 own house my son was three months old, so it must have been May or June

24 of that year. I took him to his home. He was so ill that I told him I

25 would rather like to see him dead than see him suffer so much from that

1 disease.

2 Q. I would like to, if I could, show you two photographs and see

3 whether or not you recognise them.

4 MR. GUY-SMITH: And I guess we could put those up on -- yeah,

5 wonderful.

6 Q. The first photograph, can you see that photograph?

7 A. It is not very clear, but I ask know it even at night. It's

8 myself, Haradin, and Haradin's younger brother Besim.

9 Q. And could you tell us when that photograph was taken?

10 A. This was taken during my visit in the hospital. I don't recall

11 the year. It may have been 1990 maybe.

12 Q. The -- I notice that the -- Haradin is wearing clothes that are

13 somewhat distinct. Do you know why he's wearing those clothes?

14 A. This was the uniform that patients wear in hospital, as we say

15 pyjamas.

16 Q. You say you recognise in the photograph Haradin and his younger

17 brother, Besim. Could you tell us in this photograph how old Besim was?

18 A. What can I say, maybe 13, 14 years old.

19 MR. GUY-SMITH: Could you show him the next picture, please.

20 Q. I would like you to take a look at this, it's the second picture,

21 and ask if you recognise the individuals in that photograph.

22 A. Yes, I know them. It's Haradin with his younger brother, Besim,

23 and with his uncle on his father's side, Selman.

24 Q. Do you know when this picture was taken?

25 A. No, I don't know but since I see that he's wearing pyjamas,

1 probably it's during the time that he was in hospital.

2 Q. After Haradin returned from hospital, do you know whether or not

3 he was able to work or not?

4 A. No, he was not able to work. He was travelling in his

5 horse-drawn cart always wearing an umbrella with him because a doctor

6 advised him not to stay in the sun because of his disease. And during

7 all the time I was almost -- during all the time I was with him. And it

8 was very hard for him to walk when he had to, and we used to smoke

9 together.

10 Q. I want to focus your attention in the year of 1998, and in the

11 month of May. In the month of May, where were you living, sir?

12 A. I have lived in Lapusnik, in my home village, all my life. In

13 February 1998, on the 28th of February, there was the massacre of

14 Likoshan, Qirez, and we, too, were scared of the Serb forces. In

15 Komorane, 3 kilometres away from the place I live, there is a checkpoint.

16 And at that time we started to organise ourselves and stand on guard. We

17 didn't have weapons but just wanted to keep guard and warn the people in

18 case of something happening.

19 Q. Did you stay in Lapusnik throughout 1998?

20 A. No.

21 Q. When did you leave Lapusnik?

22 A. I removed my family from Lapusnik on the 8th of May, 1998, when

23 the Serb forces left the Komorane checkpoint, there was a battle in

24 Gjurgjice. When they returned from there it was about 4.00 or 5.00 in

25 the afternoon. Our houses are along -- are 100 metres far from the

1 Prishtine-Pej asphalt road. When they were going to Komorane, they

2 shelled incessantly with their PCA -- APCs, correction, and other heavy

3 weapons. I took my family to the house of Haradin Thaqi. In the

4 evening, I took them to Nekovce to some in-laws.

5 Of the next day -- it was the 9th of May. It was Saturday, if I

6 recollect correctly. There was the first battle in Lapusnik. That day,

7 together with a cousin of mine, Bajram Thaqi, having no weapon I went to

8 Vuqak to a sister of mine and waited there until the battle was over.

9 When the battle was over, we returned home in the evening.

10 Q. Let me ask you this, sir: Did you ever become a member of the

11 KLA?

12 A. No, I couldn't.

13 Q. Why not?

14 A. Because I didn't have a gun.

15 Q. In the early part of May, did you have an occasion to see Haradin

16 Bala around Lapusnik?

17 A. Yes.

18 Q. When did you see him?

19 A. I have seen him after the 9th of May. He came with an automatic

20 rifle to the room of Musli Haradini. Present were some males aging from

21 18 to 50. He came with an automatic rifle to join the KLA. I told him

22 that I wanted to go with him, but it was impossible because we couldn't

23 share the same weapon; this cannot be.

24 Q. When you saw him sometime after the 9th of May and he was joining

25 the KLA, when is the next time you saw him?

1 A. After May, I saw him sometime in June in Nekovce and in Bajice

2 where his family were -- was staying.

3 Q. Thank you. Please wait there.

4 JUDGE PARKER: Thank you.

5 Mr. Mansfield.

6 MR. MANSFIELD: No questions. Thank you.

7 MR. TOPOLSKI: No questions. Thank you.

8 JUDGE PARKER: Thank you, Mr. Topolski.

9 Mr. Nicholls.

10 MR. NICHOLLS: Thank you, Your Honours.

11 Cross-examined by Mr. Nicholls:

12 Q. I'm over here, sir. I have a few questions for you. As you

13 stated, you've known Haradin Bala your whole life?

14 A. Yes, that's correct.

15 Q. You're a close personal friend of his and of his family's?

16 A. Yes, I'm his uncle.

17 Q. And have you been a co-worker with him?

18 A. We worked together in the building trade.

19 Q. When was that that you worked together?

20 A. Before the 1990s.

21 Q. Were you laid off at the same time when the -- when that company

22 closed?

23 A. I worked in a different enterprise. We didn't work in the same

24 enterprise.

25 Q. Now, you stated you never joined the KLA because you didn't have

1 a gun. Right?

2 A. Yes, that's correct.

3 Q. Well, you're aware that the KLA issued guns to people, aren't

4 you, including in Lapusnik?

5 A. No, I'm not aware that the KLA issued weapons. Only those who

6 were able to walk, to go on foot, to Albania and get weapons, only those

7 could have weapons. Others couldn't.

8 Q. Well, you know where Gzim Gashi's house is, don't you, in

9 Lapusnik?

10 A. Yes.

11 Q. You don't know that there was a man in there keeping records on

12 KLA soldiers and one of his jobs was to record who brought their own

13 weapon and who was issued one?

14 A. No, I don't know.

15 Q. You -- I'm trying to be clear on your testimony. Was it that you

16 were present when Haradin Bala had an attack or a heart attack of some

17 kind and had to go to the hospital?

18 A. Yes. Haradin was in my house and I was present, yes. This was

19 his second heart attack. After, he was released from hospital because of

20 the first attack.

21 Q. Was that in 1990 or in 1993?

22 A. It happened in 1992, possibly in the month of May or June.

23 Q. And who else was present?

24 A. Myself and my family, my wife, my mother, and others.

25 Q. Were you aware of whether Haradin Bala had a heart attack in 1993

1 as well or do you know anything about that?

2 A. After the first attack, Haradin was frequently ill and he always

3 used pills.

4 Q. Thank you. But that doesn't actually answer the question. Do

5 you know whether he had another attack in 1993?

6 A. Concretely, I don't know. But as of 1992, he was ill on many

7 occasions. I don't remember the year.

8 Q. And between that period in 1998, you're not aware of him having

9 any other major health complications, heart attacks, anything like that

10 that you're aware of?

11 A. Not specifically, no.

12 Q. You said you weren't aware of this record-keeping which took

13 place in Gzim Gashi's oda. Did you go to Gzim Gashi's compound in May,

14 June, July 1998 yourself?

15 A. No, I didn't.

16 Q. And did you go into the compound directly across the street from

17 Gzim Gashi's compound? You didn't, did you?

18 A. No, I didn't.

19 Q. And like everyone else in Lapusnik and from Lapusnik, you regard

20 Haradin Bala and the other accused here as heroes for defending your

21 town. Right?

22 A. That's correct.

23 Q. Now, you've described Haradin Bala as too sick to sing, too sick

24 to play an instrument, just perhaps barely able to hold an umbrella. Is

25 that your testimony?

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1 A. It's not only my testimony; this is how it was.

2 Q. Right. But I'm only asking about your testimony. That's the way

3 he was in 1998?

4 A. Yes.

5 Q. That's the way he was when he was able to walk with a

6 fully-loaded Kalashnikov strung over his shoulder. Right?

7 A. He was sick throughout the time. I didn't see what he was

8 carrying during the war.

9 Q. But you testified about him having an automatic rifle. Right?

10 You just finished talking about that?

11 A. Yes. I said that he came to join the KLA. He had an automatic

12 rifle. I wanted to join him, but it wasn't possible for two soldiers to

13 share the same gun; this is what I said earlier.

14 Q. He was determined to join the KLA, despite his health condition.

15 Correct?

16 A. With the force left in him, he was determined to go. Yes.

17 Q. And he wasn't even from Lapusnik; he came from Korretice because

18 he was seeking out combat. Correct?

19 A. He wasn't from Lapusnik. Lapusnik and Korretice are 5 kilometres

20 apart. Where Haradin lived, it wasn't possible to combat.

21 Q. Right. When we knew there was fighting going on in Lapusnik,

22 when it could be heard in his village, he went with his automatic rifle

23 to help. Correct?

24 A. He came, joined, and I don't know where he went and where he

25 fought.

1 Q. Now, nothing terrible happened to you for not joining the KLA; it

2 was a volunteer army. Correct?

3 A. Correct.

4 Q. Haradin Bala didn't have to join, he didn't have to come to

5 Lapusnik, the front line. Right?

6 A. If you could repeat the question, please, I didn't understand it.

7 Q. Well, just like you, Haradin Bala didn't have to come to the

8 front line; he could have stayed in Korretice smoking, holding an

9 umbrella, and not getting anywhere near the combat, correct? But he

10 chose to come and fight.

11 A. None of us wanted a war, but it was imposed on us. There was no

12 way that Haradin could have stayed in Korretice because it's just 5

13 kilometres away from Lapusnik.

14 Q. Were you aware that before he came to Lapusnik he organised some

15 of the guard duty in Korretice and took part in guarding Korretice?

16 A. No, I don't know.

17 Q. Your testimony is that he would never stay out in the sun? Is

18 that -- you really mean that? He would always avoid the sun at all

19 costs?

20 A. Yes, that's correct.

21 Q. All right. Well, it's a very small - and I'll grant it - even

22 silly point. The photographs with you, he's outside, no umbrella,

23 squinting into the sun. You're enjoying the sunny day together?

24 A. To me, yes.

25 Q. Well, that's right. And it's another example -- I'll suggest to

1 you you're exaggerating all of your testimony about Mr. Bala's health

2 condition because you're trying to help him because he's your friend,

3 he's your relative, and because he fought for the KLA?

4 A. No, that's not right. The doctor recommended to Haradin -- as I

5 said earlier, he was ill. He fell ill in my own house and he was so ill

6 that I said I'd rather see him dead than in this condition.

7 MR. NICHOLLS: Nothing further.

8 JUDGE PARKER: Thank you.

9 Mr. Guy-Smith.

10 MR. GUY-SMITH: Nothing further.

11 JUDGE PARKER: Thank you.

12 Mr. Thaqi, that completes the questions that are to be asked of

13 you. Thank you for your assistance and you're able now to return to your

14 home.

15 THE WITNESS: [Interpretation] Thank you.

16 Have a good day.

17 [The witness withdrew]

18 JUDGE PARKER: Yes, Mr. Guy-Smith.

19 MR. GUY-SMITH: I had mentioned before Mr. Thaqi was called that

20 it was our intention to introduce some exhibits. Initially, I would like

21 to introduce the two photographs, if I could, and have them marked as

22 next in order.

23 JUDGE PARKER: They will be received.

24 THE REGISTRAR: Your Honours, the two photographs will be given

25 Defence Exhibit DB5.

1 MR. GUY-SMITH: In addition, we had previously filed, I believe

2 both with the Chamber and supplied a copy with the Prosecution, of those

3 medical records that we have been able to compile with regard to Mr.

4 Bala's health history. And I would like to have those marked

5 collectively as an exhibit, if I could, and I believe we are in agreement

6 to those to go in.

7 MR. NICHOLLS: No objection.

8 MR. GUY-SMITH: With regard to those exhibits, I would only note

9 to the extent it's of any interest that what is designated as 1.1, which

10 is the medical note from the doctor, which we have a copy of, we do have

11 the original in a tattered form here. I believe the copy is certainly

12 representative, but I wish to make the Court aware of that.

13 JUDGE PARKER: I take it there's no objection to the photocopies

14 there, Mr. Nicholls?

15 MR. NICHOLLS: Was it tattered form?

16 MR. GUY-SMITH: Tattered.

17 JUDGE PARKER: It was shown in two pieces.

18 MR. GUY-SMITH: That is the --

19 JUDGE PARKER: Do we have the actual set of medical records?

20 MR. GUY-SMITH: I believe that you do, but in the event that you

21 don't I have them once again.

22 JUDGE PARKER: It's a question of whether the record has a copy.

23 If you could pass them to the --

24 MR. GUY-SMITH: If I could pass these then and have these

25 exhibited, that way we'll be sure that --

1 JUDGE PARKER: Each member of the Chamber has what I believe is a

2 copy of the same --

3 MR. GUY-SMITH: Very well.

4 JUDGE PARKER: We need to be sure we have the right thing as the

5 exhibit.

6 MR. GUY-SMITH: Yes. So this will be received as a bundle of

7 medical records of the accused.

8 [Trial Chamber and registrar confer]

9 JUDGE THELIN: Could I on this have a clarification from you, Mr.

10 Guy-Smith. It seems in the Dutch original there's a reference to a Mr.

11 Lente and it says "slash Bala." I just want to have that clarified.

12 MR. GUY-SMITH: If we might go into private session for a moment.

13 JUDGE PARKER: Private.

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)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: We are in public session.

11 JUDGE PARKER: That exhibit is received as DB6, Mr. Guy-Smith.

12 MR. GUY-SMITH: Thank you.

13 With regard to the testimony of the live witnesses, that is the

14 extent of the testimony of the live witnesses we have available for

15 today. Tomorrow we have two witnesses, I believe both of them -- I think

16 one of them has arrived. One of them is in the process of arriving. I

17 understand we start tomorrow morning at 9.00 and we are intending to call

18 them viva voce. And the remaining matter is the matter I raised with the

19 Chamber earlier, which is the statement of Mr. Tucker, which we are in

20 the process of ironing out between the Prosecution and ourselves.

21 JUDGE PARKER: Thank you very much. Then you would like to

22 adjourn now?

23 MR. GUY-SMITH: Yes, that would be convenient.

24 JUDGE PARKER: Mr. Topolski, I wasn't meaning to --

25 MR. TOPOLSKI: Mr. Nicholls was on his feet. I don't know if he

1 was bursting to say something or bursting to say good night.

2 MR. NICHOLLS: I was just rising.

3 JUDGE PARKER: Mr. Topolski, then it's you.

4 MR. TOPOLSKI: Your Honour, I don't know if this will assist. If

5 it doesn't I will say no more now. But I think it was Judge Thelin who

6 asked last week tentatively whether we were in a position to indicate the

7 position regarding the case of Isak Musliu. We are about to reach the

8 end of Mr. Bala's case tomorrow. I am in a position to indicate it now

9 that I understand that the Tribunal would be assisted with regard to its

10 own forward planning to hear what the position is sooner rather than

11 later. Or if it's felt inappropriate to interpose this now, I'm happy to

12 wait until Mr. Guy-Smith is finished tomorrow.

13 JUDGE PARKER: We'd be happy to hear now, Mr. Topolski.

14 MR. TOPOLSKI: Your Honours, the position is this: that it is

15 and will be our submission that the Prosecution has failed in this case

16 to prove beyond reasonable doubt any part of this indictment against Isak

17 Musliu. Consequently, he will neither give nor call any live evidence as

18 to the facts in this case. We have agreed a number of witnesses under

19 the 92 bis procedure. There will be a formal filing in due course.

20 I should add this, that there is one expert, Professor Wagenaar,

21 whose statement I think was filed on the 26th of May, dealing with

22 identification procedures, who will be called by me, as it were, on

23 behalf of all three defendants. My learned friends for the Office of the

24 Prosecutor were perfectly entitled to and have sought to stand by the

25 30-day rule regarding Professor Wagenaar, and consequently, there will be

1 a time delay before one is able to call him.

2 May I indicate, and I hope Mr. Whiting will permit me to do this

3 because it's relevant to your planning, to indicate where I understand we

4 are with regard to that witness. Mr. Whiting tells me that he's not yet

5 in a position to cross-examine him. He has asked for and we have agreed

6 to a conjoint meeting with Professor Wagenaar and representatives of both

7 Prosecution and Defence bars. Mr. Whiting has asked for, and I'm setting

8 this up, for that meeting to take place during the week commencing the

9 week of the 20th of June, in other words not the next week but the week

10 after, and as presently advised by him - Mr. Whiting, that is - he

11 indicated to us that he would not, he thought, be in a position to

12 cross-examine that witness until the week commencing the 27th of June, at

13 the earliest. Now, these are all matters that Mr. Whiting would have to

14 no doubt develop, if called upon to do so.

15 All I wished to indicate, first of all, was what our position was

16 in the case as a whole and what the position is, therefore, that stands

17 between tomorrow and the conclusion of the evidence, and the short answer

18 to that is Professor Wagenaar.

19 JUDGE PARKER: And he is on a particular and confined expert --

20 MR. TOPOLSKI: Your Honour, there's been a filing and may I

21 respectfully on behalf of the bar invite the Tribunal at a convenient

22 time to read the report of Professor Wagenaar, which happily is not long

23 for an expert. He is not a name unknown to this Tribunal. He has been

24 called in fact by the Prosecution on two previous occasions I think.

25 It's on the issue of identification evidence, which is common to all

1 three defendants here.

2 JUDGE PARKER: Yes.

3 MR. TOPOLSKI: And the -- yes, I hear the whisper to my left.

4 The consideration is active between us and learned friends is whether he,

5 as it were, becomes a joint expert before the Tribunal. But I'll say no

6 more about that at the moment because I'm not clear what Mr. Whiting --

7 yes, Mr. Whiting's position really will be with that regard -- in that

8 regard.

9 So, Your Honour, that, in summary form, is the position.

10 JUDGE PARKER: Thank you very much for that, Mr. Topolski.

11 Thinking -- is there anything that Mr. Whiting would want to add on this

12 theme?

13 MR. WHITING: Well, I would just add that the schedule that's

14 been laid out by Mr. Topolski is essentially accurate. It's possible

15 that things will go more quickly, but I don't expect that to happen.

16 I should also say that just so the record is clear that the

17 expert that's been referred to, Professor Wagenaar, has indeed testified

18 twice at the Tribunal, but on both occasions as a Defence witness, not as

19 a Prosecution witness. I don't frankly expect that he will become a

20 joint witness, but of course anything is possible.

21 MR. GUY-SMITH: If I might --

22 JUDGE PARKER: Mr. Guy-Smith.

23 MR. GUY-SMITH: If I might, with the briefest of corrections. He

24 has neither testified only as a Prosecution witness nor only as a Defence

25 witness. As a matter of fact, on one occasion I believe he was agreed to

1 be a witness and was called ultimately as a witness for the Chamber

2 itself by agreement between the Prosecution and Defence. And on one

3 occasion, he was called as a Defence witness.

4 JUDGE PARKER: Well, we look forward in due course to hearing the

5 evidence, whether he's been called by anybody else or not.

6 MR. GUY-SMITH: Well, you may wish to call him yourself.

7 JUDGE PARKER: We're not in that mood.

8 MR. TOPOLSKI: I'm going to try and get you to do it just once

9 before we finish.

10 JUDGE PARKER: If you wanted the Chamber to call witnesses, you

11 might be surprised at the list, Mr. Topolski. Don't provoke, I would

12 advise.

13 MR. TOPOLSKI: Your Honour, can I very briefly, please, and this

14 is not an attempt to take up the next hour and three-quarters with

15 procedural matters. But may I dip my toe into another pool all together,

16 and it's this: The reality is, therefore, that on any view the evidence

17 in this case will finish in this case before the end of next month. On

18 any view.

19 I don't invite discussion on it now, but I know it would help

20 some of us a very great deal to have a discussion at some convenient

21 moment regarding the final stages of the trial that will follow the

22 conclusion of the evidence. As I say, I want to make it clear, I'm not

23 provoking or requesting a discussion of that now necessarily. But may I

24 flag it up as a topic that will certainly need to be discussed for Your

25 Honours to in fact indicate in due course after, I hope, hearing

1 submissions on the subject a timetable.

2 JUDGE PARKER: While your toe is in the water, Mr. Topolski --

3 MR. TOPOLSKI: I hope you're not going to push me in.

4 JUDGE PARKER: No, I was just going to drop a few little blocks

5 of ice and see how you reacted.

6 MR. TOPOLSKI: Very well.

7 JUDGE PARKER: It would seem highly desirable in the interests in

8 particular of the accused that we reach the end of the trial and a

9 decision as soon as can properly be done so. To that end, it would seem

10 highly desirable that we conclude both the receipt of written submissions

11 and any oral final submissions before the end of the current term, if I

12 can borrow an English expression. That would mean that before the 23rd

13 of July. That -- bearing in mind --

14 MR. TOPOLSKI: This water's getting cold.

15 JUDGE PARKER: Bearing in mind where we now are in June,

16 accepting that there will be the interposition of the evidence of

17 Professor Wagenaar, I venture for the consideration of counsel and

18 perhaps submissions tomorrow, assuming there may be time for that,

19 whether it would be convenient to contemplate then written final cases

20 sometime by about the first full week of July, which concludes on the

21 8th; and then oral submissions to follow either at the end of the week

22 following or at the beginning of the last week of the term.

23 Now --

24 MR. TOPOLSKI: When Your Honour says that, does the Tribunal --

25 Chamber have mutual filing in mind?

1 JUDGE PARKER: Yes.

2 MR. TOPOLSKI: Um --

3 JUDGE PARKER: That is the practice that has been most usually

4 found convenient and which we have found. Oral submissions enable then a

5 taking up of any disparity and for that reason in particular we would

6 normally think of allowing at least a week between the written filing and

7 the oral.

8 MR. TOPOLSKI: Well, Your Honour, perhaps we should address this

9 more fully tomorrow --

10 JUDGE PARKER: Well, as I indicated, they were merely a few

11 little blocks of ice for people to think of.

12 MR. TOPOLSKI: Yes, Your Honour. I can indicate --

13 JUDGE PARKER: If they present major problems, we would like to

14 hear about it.

15 MR. TOPOLSKI: Well, Your Honour, I try to avoid adjectives

16 whenever possible, but in this case, certainly for me personally, that

17 would produce a major problem. It would require my return from the

18 United States for the purpose of making final submissions to this

19 Tribunal, which of course it would be my pleasure to do if I'm required

20 to do so. I don't know what other problems, logistically,

21 professionally, or personally that presents any of my learned friends.

22 As far as the brief is concerned, may I indicate this without

23 giving away any state secrets. I think it's the intention of the Defence

24 to file a joint brief which will be the most convenient way of receiving

25 it, we think. It will nonetheless be a very considerable document. We

1 are aware that there are page limits to such a document, and we would

2 anticipate that we would reach that limit in any event. So therefore we

3 are talking about the submission of a document of something a little less

4 than 500 pages.

5 In addition to that, final speeches, which certainly for my part

6 and I'm sure for others who defend will not be by way, as it were, of

7 repetition of that brief, but by way of amplification of submission of

8 the contents of the final brief. Major undertaking, thereto, in the

9 consideration and preparation of that, I can tell the Tribunal -- Chamber

10 that there are a team of volunteers and conscripts actively engaged on

11 this, this process -- of preparation of the final brief I mean. I

12 wouldn't want the Chamber to think that we waited for the conclusion of

13 the evidence to start the work; far from it. The work has been ongoing

14 for some time and I have no doubt Mr. Whiting would say the same on

15 behalf of the team he leads.

16 But, Your Honour, as I say, perhaps we could develop this a

17 little more tomorrow. I think there will be serious concerns as to

18 whether the timetable -- which I very much hope is not written in stone.

19 It doesn't sound like it is. Your Honour didn't describe it that way and

20 I see you're --

21 JUDGE PARKER: It's not. Ice has a habit of melting under any

22 sort of heat.

23 MR. TOPOLSKI: I hope I have turned the temperature up very

24 slightly. Can I say also that I would not want anyone who sits behind me

25 to think that the object of this exercise to prolong the agony, and I use

1 the term mutually, for any of them any longer than is necessary, and I

2 put it no higher nor lower for us all to discharge our duties to our lay

3 clients and present their cases in the best and most tenable light

4 possible. And that is not a task as to what is required here that can be

5 taken quickly or lightly. Nonetheless, we will not drag our heels over

6 it.

7 Your Honour, with those thoughts very much off the top of my head

8 in response to Your Honour in mind and unless anyone wants to add

9 anything now, that's certainly all I wish to say on the subject this

10 evening. Thank you for the opportunity of being heard on it.

11 JUDGE PARKER: I fancy it may be something for counsel to reflect

12 on and be ready tomorrow with views.

13 You keep hiding behind these new screens, Mr. Whiting. Is there

14 anything you feel you need to put into play at this moment?

15 MR. WHITING: No, I understand this is something we will take up

16 tomorrow. Just so there's no suspense, I anticipate that we'll say that

17 it will be extraordinarily difficult to meet that deadline. There may be

18 even a brief rebuttal case, though I wouldn't expect that that would take

19 more than a day or two. That would be completed the week of the 27th --

20 JUDGE PARKER: Along with the evidence and cross-examination of

21 the professor?

22 MR. WHITING: I would expect, yes, Your Honour, assuming the

23 professor testifies on Monday, I assume that would be completed by the

24 end of the week. That leaves only one week to devote full attention to

25 the final brief which --

1 JUDGE PARKER: Well, I venture the thought that time is now

2 running largely with respect to that rather than waiting until the end of

3 the professor.

4 MR. WHITING: No, that's certainly true, though up until today

5 and up until tomorrow we've been busy with the Defence case and we will

6 continue to be busy preparing for the expert. We have been -- we have

7 been working -- the team we have is essentially what you have before you

8 here in the courtroom. And we haven't waited to start. We have been

9 underway, but nonetheless there's always a lot to pull together at the

10 end, a lot to just simply write. So -- I'm just anticipating what our

11 position will be.

12 JUDGE PARKER: Very well.

13 I think we have aired the issue enough today to start thoughts

14 running. And with that in mind, we would look forward tomorrow to the

15 further evidence and then to submissions on this issue which is, as Mr.

16 Topolski has indicated, a serious one which requires the balancing of the

17 desirability of reaching finality in this trial at the earliest proper

18 opportunity, with the need of ensuring that counsel have time to put

19 their respective cases forward in a proper form so that justice is best

20 aided.

21 With that in mind, we will adjourn now until tomorrow at 9.00.

22 --- Whereupon the hearing adjourned at 5.31 p.m.,

23 to be reconvened on Thursday, the 8th day of

24 June, 2005, at 9.00 a.m.

25