1 Wednesday, 20 September 2006

2 [Open session]

3 [The accused entered court]

4 [The accused Pavkovic not present]

5 --- Upon commencing at 2.16 p.m.

6 JUDGE BONOMY: Well, good afternoon, everyone.

7 [Albanian on English channel].

8 MR. ACKERMAN: Your Honour, I'm getting -- I think you're talking

9 a bit about my client not being here, but the translation is coming

10 through on the wrong channel or something.

11 JUDGE BONOMY: Well, I hope I'm not requiring --

12 THE INTERPRETER: Apologies from the interpreters, it was the

13 wrong channel. Apologies.

14 JUDGE BONOMY: Two nations divided by a common language.

15 MR. ACKERMAN: Your Honour, he is ill and I understand he has

16 signed a consent that things go forward in his absence. It's supposed to

17 have been delivered to the -- to the Tribunal. I don't know if it's

18 arrived here yet, but I've been told that he's signed it.

19 JUDGE BONOMY: Well, I haven't seen it, but that verifies the

20 position for us. Thank you.

21 MR. ACKERMAN: Yeah.

22 JUDGE BONOMY: Now, Mr. Marcussen, who is the next witness?

23 MR. MARCUSSEN: Good afternoon, Your Honour. The next witness is

24 Halit Berisha, but I understand that one of my colleagues on the other

25 side has an objection that you might want to deal with before we bring in

1 the witness. I'm not sure.

2 JUDGE BONOMY: Yes, I was alerted to that. That is just to

3 confirm that the witness is available and that's what your intention is.

4 Mr. Zecevic.

5 MR. ZECEVIC: Thank you, Your Honour.

6 [Interpretation] Your Honour, the Defence has an objection to the

7 relevance of party's statements --

8 THE INTERPRETER: Interpreter's note, they cannot hear

9 Mr. Zecevic. Other microphones are on in the courtroom.

10 JUDGE BONOMY: [Microphone not activated]

11 MR. ZECEVIC: Should I start from the very beginning again?

12 JUDGE BONOMY: [Microphone not activated]

13 MR. ZECEVIC: Okay. The Defence has an objection -- the Defence

14 has an objection -- [Interpretation] -- as to the relevance of parts of

15 the statement and transcript of witness Halit Berisha. Therefore, the

16 Defence takes the following position in view of stipulating agreed facts

17 and relevant regulations -- rather, laws that were in force at the time of

18 the indictment. And this is presented in our motion to the Trial Chamber

19 dated the 31st of August -- or rather, the 1st of September, 2006.

20 As a matter of fact, Witness Berisha in part of his statement and

21 also in part of the transcript from the Milosevic trial speaks of events

22 that occurred in the period from 1989 up until 1991. These facts, in the

23 view of the Defence, do not prove -- or rather, do not challenge a single

24 one of the counts of this indictment. These facts --

25 JUDGE BONOMY: Does that mean the objection here is to paragraph 2

1 of the statement?

2 MR. ZECEVIC: Let me consult with the statement, Your Honour.

3 Exactly, paragraph 2 and paragraph 3.

4 JUDGE BONOMY: Well, paragraph 3 is of little moment I suspect,

5 and --

6 MR. ZECEVIC: Yeah, well, paragraph 2 in essence, Your Honour.

7 JUDGE BONOMY: It's -- I mean, his previous history of working,

8 where he worked, and being unemployed is of some marginal background

9 relevance. But paragraph 2, I notice, is your -- the one to which you're

10 opposed. Now, you say that this is because of having stipulated to

11 certain facts and legislation. Is that right? Or have I -- it's -- what

12 you said in the beginning isn't really terribly clear to me.

13 MR. ZECEVIC: [Interpretation] This is what it's about,

14 Your Honour -- or rather, we are challenging the relevance of parts of the

15 statement in view of the fact that they pertain to the period from 1989

16 until 1991. This position is one that we already presented in our motion

17 to the Trial Chamber dated the 31st of August that had to do with the

18 order issued by the Trial Chamber regarding stipulations. To that effect,

19 I tried to show the consistency of our position, the position of the

20 Defence, to the Trial Chamber from the point of view of this particular

21 aspect.

22 [In English] May I continue, Your Honour?

23 JUDGE BONOMY: Yes, please.

24 MR. ZECEVIC: [Interpretation] These facts that are mentioned in

25 the statement and in part of the transcript of Mr. Halit Berisha were

1 relevant for the Milosevic case in view of the nature of this case, the

2 position -- the office held by Slobodan Milosevic and the fact that the

3 indictment against Mr. Milosevic pertained to the period of conflicts in

4 the former Socialist Federative Republic of Yugoslavia as well -- or

5 rather, Croatia and Bosnia as well, too.

6 In this case, however, the period relevant to the indictment

7 pertains to alleged crimes committed after the 23rd of March, 1999, and at

8 the time when the Federal Republic of Yugoslavia was in existence. The

9 SFRY ceased to exist on the 27th of April, 1992, when the Federal Republic

10 of Yugoslavia was established and when a new constitution was passed for

11 the new state union of Serbia and Montenegro. This change of the

12 constitution also meant a change in the entire social political system of

13 the state. It meant that socialism disappeared and also social itself

14 management as the basis of the social and economic system of the country,

15 as well as other foundations upon which the constitution of the Socialist

16 Federal Republic of Yugoslavia was based.

17 The constitution of the FRY on the other hand is based on a

18 completely social-political system. First and foremost, the rule of law,

19 the rights of citizens, market economy, democracy, and political

20 pluralism. After the constitution was adopted. After the constitution of

21 The Federal Republic of Yugoslavia was adopted in accordance with the time

22 limits in the constitutional law for the implementation of the

23 constitution, a certain number of regulations of the former SFRY was no

24 longer in force, whereas other regulations were changed and amended within

25 a certain time period and brought into accord with the constitution of the

1 Federal Republic of Yugoslavia. The provisions of the constitution of the

2 Federal Republic of Yugoslavia in the paragraph on constitutionality and

3 legality, notably article 1 to 15 envisages that the constitutions of the

4 member states, that is to say Serbia and Montenegro, as well as their

5 regulations have to be brought into accordance with the constitution of

6 the Federal Republic of Yugoslavia. This basically means that the

7 regulations of the member republics after the constitution of the FRY was

8 adopted had to be changed, too, because they had to be brought into accord

9 with the constitution of the Federal Republic of Yugoslavia.

10 For these reasons, we believe that as far as this case is

11 concerned, events and incidents and acts that were committed in a state

12 that ceased to exist are of no relevance for this case. We believe that

13 our position contributes to focussing this court proceeding on relevant

14 facts from the indictment. Presenting evidence that goes beyond that

15 scope would necessarily bring about a serious extension of the court

16 proceedings. Since the Defence will have no other alternative but to

17 adduce evidence that will show that the history of Kosovo-Metohija and the

18 development of the autonomy of that province did not start in 1989 but

19 considerably before that. Perhaps in 1946 or we can even go back to the

20 end of the 19th century and the Prizren League.

21 In our view, this kind of situation would necessarily lead to this

22 trial being one where we would deal with history and hearing numerous

23 experts, who would present facts related to history and the genesis of the

24 autonomy of Kosovo-Metohija. Our position is that that is not the

25 objective of this trial, and therefore we suggest to the Trial Chamber not

1 to allow anyone to call evidence that is not relevant to this indictment,

2 because on the one hand it would lead to a waste of precious time and on

3 the other hand if the Trial Chamber would consider these facts to be

4 relevant, the Defence would be compelled to respond in an appropriate

5 manner to facts presented in this way.

6 [In English] Thank you, Your Honours, this was my submission.

7 JUDGE BONOMY: Can I just ask you a couple of questions for

8 clarification?

9 MR. ZECEVIC: Yes.

10 JUDGE BONOMY: In both 1990 and 1999, the boundaries of the

11 Republic of Serbia were identical. Is that correct?

12 MR. ZECEVIC: [Interpretation] The boundaries of the Republic of

13 Serbia were correct, not the boundaries of Republika Srpska. Maybe it was

14 a misinterpretation --

15 JUDGE BONOMY: The boundaries of the Republic of Serbia were the

16 same in 1990 as in 1999?

17 MR. ZECEVIC: That is correct, Your Honour.

18 JUDGE BONOMY: And the boundaries of Kosovo within the Republic of

19 Serbia were the same in 1990 and 1999?

20 MR. ZECEVIC: That is correct, Your Honour.

21 JUDGE BONOMY: All right.

22 And just one other thing. What does the indictment say about the

23 involvement of your client and Mr. Sainovic in 1990?

24 MR. ZECEVIC: [Interpretation] In our view, in our view,

25 Your Honour, the indictment deals with facts from 1981 to 1996 or 1997

1 only in paragraphs 82 through 94 --

2 JUDGE BONOMY: Yeah, that --

3 MR. ZECEVIC: [Interpretation] -- As part of the context for the

4 indictment.

5 JUDGE BONOMY: Yeah, there's a reference in paragraph 89 to

6 Milosevic implementing policy through others, including the first and

7 second accused here. But there's no indication I think in the indictment

8 that they held particular posts in 1990, is there?

9 MR. ZECEVIC: [Interpretation] Correct.

10 JUDGE BONOMY: All right. Thank you very much, Mr. Zecevic.

11 MR. ZECEVIC: Thank you, Your Honours.

12 JUDGE BONOMY: Mr. Ackerman.

13 MR. ACKERMAN: Your Honour, I have a separate objection, whether

14 you want to hear that now or deal with the one Mr. Zecevic made first.

15 JUDGE BONOMY: No. On you go, please.

16 MR. ACKERMAN: I'm sorry?

17 JUDGE BONOMY: Carry on and state your objection.

18 MR. ACKERMAN: All right.

19 Your Honour, last night I think the e-mail was sent around 8.00

20 p.m. I didn't receive it until after 9.00, and I'm sure that most of my

21 colleagues didn't receive it that early. The Prosecution notified us that

22 they had prepared a number of excerpts from the transcript of the

23 testimony of this witness in the Milosevic case and that there were some

24 changes made in it by the witness and that they intended to use it today

25 as an exhibit.

1 That doesn't come even close to complying with the notice

2 requirements of -- of your order on procedure entered at the beginning of

3 this case. And on that basis alone, I object to that. If there is some

4 reasonable that objection would be overruled, then I have a specific

5 objection to various parts of that transcript being admitted in this case,

6 but I'll stand right now on my objection as to the entire transcript

7 coming in.

8 In addition, we -- we did receive notice that the Prosecution

9 would seek to admit Exhibits P777 through P794 through this witness, and

10 these consist of -- of a bunch of documents and stuff that this witness

11 says he found lying around or were on a CD -- or not a CD, a disk that was

12 handed to him upon his return to Suhareke. There is absolutely no

13 indication that these exhibits are what they appear to be. They have not

14 been authenticated in any way, and in fact there is indication that they

15 are not authentic. And that can be found with regard to Exhibit 782,

16 which this witness said in his testimony Milosevic was -- was handwritten

17 by a Serb, that he was certain that it was written by a Serb.

18 Your Honour will notice that the -- if you look that the

19 translation into English of that handwritten notation in 782, the

20 translator makes a note saying that the writer seems unfamiliar with the

21 Cyrillic alphabet, indicating that it was probably written by somebody who

22 was unfamiliar with writing in Cyrillic, which probably wouldn't fit in

23 with what it's purported to be. In any event, I think all those

24 attachments are irrelevant to the issues we're dealing with here and they

25 have no authenticity to them. They're -- they haven't been identified by

1 anyone as being authentic, and I think they should all be ruled out of

2 evidence and denied, the admission denied.

3 I want to speak very specifically about 781 and 782. 781 and 782

4 seem to be an effort to -- to kind of sneak in through the backdoor what

5 you ruled out on Monday in terms of the village of Trnje, because that's

6 apparently what the contention is, that these documents speak about is the

7 events in the village of Trnje that were ruled inadmissible with the

8 Witness K-82 on Monday. So that would be I think the essence of my

9 objection.

10 JUDGE BONOMY: Thank you.

11 The document on the screen is P78 -- is it 782? But what we have

12 there is a typewritten version. Is there an original document? Ah,

13 you -- well, on your screen I think we see the original.

14 Thank you.

15 Mr. Marcussen.

16 MR. MARCUSSEN: I'll address the points raised by both of my

17 learned colleagues, but I'd like to comment first on something

18 Mr. Ackerman said towards the end of his submissions. Well, first of all

19 I should say that actually it was not my intention to -- to seek 781 and

20 782 admitted today through the witness. I'm not sure the -- we will not

21 be relying on those exhibits.

22 JUDGE BONOMY: Which ones are they on the list in the statement,

23 the last page of the statement? I think we've got items 1 to 15 listed

24 there.

25 MR. ACKERMAN: They're number 4, Your Honour.

1 JUDGE BONOMY: Number 4. They're both number 4, are they?

2 MR. MARCUSSEN: It's two sides -- a picture and on the back side

3 something is written on the picture. That's my understanding.

4 JUDGE BONOMY: So it's 4 and 5 then, is it?

5 MR. ACKERMAN: Your Honour, I understood it was 4, but it could be

6 4 and 5, but I think it's just 4. I think that's just a two-page document

7 basically.

8 JUDGE BONOMY: All right. So -- anyway, carry on, please,

9 Mr. Marcussen.

10 MR. MARCUSSEN: So to that extent there shouldn't be any issue.

11 To the issue of sneaking exhibits into the record that have been

12 disallowed, I just think I should note that we filed the -- our witness

13 notification last week before Your Honours ruled on K-82, so I find that

14 -- that suggestion a little misplaced.

15 With respect to the relevancy of paragraph 2 of Halit Berisha's

16 statement and also the documents that Mr. Ackerman has objected to, we

17 submit that these documents are clearly relevant to paragraph 88 of the

18 indictment. They are essentially -- the fact that Mr. Berisha was

19 dismissed as a mayor was part of, in our submission, an increasingly

20 discriminatory policy against Albanians and we are not seeking to rely on

21 the legal nature of these documents. We would be putting these documents

22 in to show some of the factual background to the development on the -- of

23 the conflicts in -- in Serbia and in Kosovo. So we submit that these

24 documents are highly relevant to the determination of whether or not there

25 was a plan that evolved over time and led to the events in 1999,

1 culminated in 1999.

2 I don't have much further to really add on that unless Your

3 Honours have specific questions on this. Maybe another thing to clarify

4 is that Mr. Ackerman referred to documents on a CD and documents found

5 in -- found by Halit Berisha in the municipal building in Suva Reka. None

6 of the exhibits that we are seeking to tender through the witness were

7 found -- are those that originate from the CD. P77 through P -- sorry,

8 P777 through P794 are all documents that he himself found in the municipal

9 building and he would be able to explain today to the Court how he found

10 them, the process by which he gathered them, and how he provided them to

11 the Office of the Prosecutor. So we submit that the witness should be

12 allowed to testify about -- this evidence about his dismissal as a mayor

13 should be admitted and we should put these documents to him and at least

14 wait for the determination on their admissibility until we have heard from

15 the witness.

16 JUDGE BONOMY: What is it you say that proving paragraph 88 of the

17 indictment will contribute to the determination of the case?

18 MR. MARCUSSEN: I'm not entirely sure that -- it seems that we're

19 getting into the scope of the indictment, which is --

20 JUDGE BONOMY: We're anxious to understand it, you see, because we

21 obviously were at cross-purposes going by the debate we had on Monday.

22 And we have taken a decision which is obviously contrary to the view that

23 the Prosecution had of the scope of the indictment. So I think it's

24 legitimate of the Bench to seek from time to time clarification of what's

25 intended to be shown by proving particular points, and I'd like to know if

1 you can help me - and if you can't, please say so - what you think will be

2 achieved that will assist us by proving what's set out in paragraph 88.

3 MR. MARCUSSEN: In our pre-trial brief we have explained -- we set

4 out the background for the joint criminal enterprise that we say came into

5 existence -- that was in existence at the time of the crime -- specific

6 incidents charged in the indictment. In order to -- for Your Honours to

7 make a determination of whether or not there was a joint criminal

8 enterprise in 1999, we submit that it is relevant to look at the

9 historical context to some extent, and paragraph 88 of the indictment is

10 part of that historical context. It's the Prosecution's submission that

11 the issue of the autonomy of Kosovo was a crucial political issue -- was a

12 crucial political issue for many Serbs. It was important for Milosevic to

13 come to power and hold on to power. We have set out how there was initial

14 attempts to achieve alteration of the ethnic balance in Kosovo through

15 various practical and legislative means. We have explained how that

16 eventually seems to have been considered not to have been efficient

17 enough, and eventually we ended up with the mass deportation and expulsion

18 that occurred in 1999.

19 So that is the relevancy of this evidence. We submit that it's

20 highly important for the Trial Chamber to hear this evidence and to have

21 it on record and to be able to consider that when you finally deliberate

22 on the issues of whether or not there was a joint criminal enterprise and

23 also the intent of the accused in these sort of bigger issues in the

24 case.

25 JUDGE BONOMY: Well, thank you. That is helpful to hear these

1 points that you have expressed. But what you have not dealt with so far

2 is the late notification of changes to the transcript and the objection

3 that's taken to the transcript in its entirety.

4 MR. MARCUSSEN: Thank you, Your Honour. Sorry, I forgot that.

5 Yes, it is correct. Halit Berisha only arrived here in the

6 evening the day before yesterday. We were only able to meet with him

7 yesterday. He has made -- when we met with him and put certain excerpts

8 of his testimony in the Milosevic case to him, with a view to see if we

9 could have that part of his evidence admitted under Rule 89(F), the

10 transcript was read back to him and he had certain, in my view -- in my

11 submission, cosmetic changes to what was in the transcript and a few

12 clarifications. Some of the clarifications, if I could -- I don't know if

13 you would like me to go through them --

14 JUDGE BONOMY: Well, one of them I know is the difference between

15 life and death, but the others may be cosmetic. That may be the only one

16 that's significant. I don't know.

17 MR. MARCUSSEN: And I think the one about life and death really --

18 I'm just looking for it so we can go into more detail. Yes, it's at -- in

19 the Milosevic transcript it's page 7.462. I don't think this -- well, I

20 don't know if it is the Defence position that there is an issue about

21 whether or not Jashar Berisha got killed on the 26th of March, 1999. I

22 would think that that is not the case. So really -- and if one looks at

23 paragraph -- at line 6 of the page that I've just referred to, it's quite

24 clear that what's being talked about here is that events on the 28th of

25 March. That's clearly two days after the brother had been killed.

1 JUDGE BONOMY: Yeah.

2 MR. MARCUSSEN: "My brother was still at the gas station." Well,

3 it could even have been true in the witness's mind in that he could still

4 be lying dead there as far as he was concerned, but what he clarified with

5 me was just that the brother had been killed at the gas station. I'm --

6 in my submission, this is not a material change to the evidence of this

7 witness. It really is a minor clarification of something that has gone

8 into the transcript.

9 And the other ones are really rather small. One of them is a

10 consequence of something that was corrected with respect to how Halit

11 Berisha and one of his brothers separated at one point and the brother

12 tried to get to Albania. Now, that is wrong. It's wrongly set out in

13 the -- in Halit Berisha's statement, and a correction was made in the

14 Milosevic transcript. And it looks like there was some confusion later on

15 in the transcript. And those -- little things like that have been

16 changed.

17 JUDGE BONOMY: All right. Well, I think you've addressed that

18 sufficiently. Thank you, Mr. Marcussen.

19 MR. ACKERMAN: Your Honour.

20 JUDGE BONOMY: Yeah -- yes.

21 MR. ACKERMAN: I think maybe you are -- the Chamber is viewing

22 this without having -- me having given you all the information I need to

23 have given you.

24 JUDGE BONOMY: Well, I do want you also to separately address the

25 subsidiary objection you have to parts of the transcript.

1 MR. ACKERMAN: I will.

2 Unless I missed something, we were given a 65 ter list of exhibits

3 for this witness and it had a list of exhibits to be used with this

4 witness. The statement was not contained in that list, the transcript

5 from the Milosevic case was not contained in that list. What was

6 contained in that list are all those attachments we've been talking about

7 today, P777 through P794, a couple of photographs and a couple of maps,

8 and that's it. So this isn't a cosmetic change to something we've been

9 notified was going to be used as an exhibit with this witness; it's a

10 completely new exhibit. They had not notified us they were going to use

11 the Milosevic transcript as an exhibit; second, they had not even notified

12 us they were going to use the witness's statement as an 89(F) statement.

13 And I understand they intend to do that today also and I'm not objecting

14 to that, even though there's been no notification.

15 Now, if I missed something that came to us by e-mail or something

16 like that, maybe I will find out that I'm speaking out of turn here, but I

17 don't think so. I don't think any of us had any notice regarding this.

18 Now, if you want me to go into the specific parts of the --

19 JUDGE BONOMY: Well, just before you do, I'm trying to be

20 realistic about this situation and where you've been given a statement

21 which in this case is a statement dated the 17th of August, 2001, and a

22 witness then comes here, I find it difficult to see that there can be any

23 real objection in principle to the witness going into the witness box and

24 being asked by the Prosecution to confirm whether the statement's accurate

25 or not and -- it simply avoids leading viva voce the evidence that

1 otherwise would be presented.

2 MR. ACKERMAN: I already told you, I make no objection to that.

3 JUDGE BONOMY: I understand that.

4 MR. ACKERMAN: Okay.

5 JUDGE BONOMY: So I then extend that to the transcript. If the

6 transcript was at least on the 65 ter list, and I don't think you've told

7 me it wasn't listed --

8 MR. ACKERMAN: It was not.

9 JUDGE BONOMY: Well, you told me it wasn't listed against this

10 witness. Just -- was it not listed at all?

11 MR. ACKERMAN: It's not on the 65 ter list.

12 JUDGE BONOMY: At all?

13 MR. ACKERMAN: Well, I'm looking at the one with regard to this

14 witness. I don't know why it would be on any other 65 ter list because it

15 is this witness's testimony.

16 JUDGE BONOMY: Yeah, Mr. Marcussen.

17 MR. MARCUSSEN: It's correct, we have not listed the transcript

18 of -- or indeed the statement as an exhibit early on. Halit Berisha was

19 initially indicated to be a live witness, and it would probably have even

20 been inappropriate of us to make his statement an exhibit in such

21 circumstances. We have -- it really is a question of time. In my

22 submission --

23 JUDGE BONOMY: No, it's not a question of time. If you're going

24 to present exhibits that have never been on the list then there's a

25 method of doing that, and that is for you to seek leave, if you haven't

1 sought.

2 MR. MARCUSSEN: Your Honour, our understanding of the -- of the

3 89(F) procedure is that we would get the witness into court. We would

4 confirm with the witness whether or not the witness statement of the

5 witness reflects his evidence today. If that is the case, then we would

6 ask to have the statement tendered. We did in our witness notification

7 that we filed last week indicate that Halit Berisha was going to be an

8 89(F) witness. Now, we had not had an opportunity to speak to Halit

9 Berisha until then, so we were not able to indicate that his statement and

10 excerpts from the Milosevic transcript would indeed be the 89(F) material.

11 Had we done so but would have found ourselves in the situation where there

12 would have been substantial changes, we would have had to replace the

13 statement.

14 JUDGE BONOMY: Do you know if he has a telephone?

15 MR. MARCUSSEN: He does have a telephone, Your Honour.

16 JUDGE BONOMY: Why does nobody do these things before witnesses

17 come here?

18 MR. MARCUSSEN: Your Honour, to my knowledge the witness didn't

19 have a copy of his statement and he certainly didn't have the transcript

20 from the Milosevic case, which is in English and which in any event he

21 couldn't have read.

22 JUDGE BONOMY: Do you have somebody in Pristina with a fax?

23 MR. MARCUSSEN: We could probably have faxed things to Pristina.

24 JUDGE BONOMY: Okay. I mean, I continue to be amazed at the

25 difficulties that the Prosecution claim in preparing witnesses. Now, we

1 are told that there are resource problems, but every witness that comes

2 here seems to be speaking to historical statements or old transcripts, to

3 which nothing has been done until they arrive a couple of days before

4 giving evidence. And many of them have given evidence in the Milosevic

5 trial. Now, it's very -- I wonder what has been taking up all your time

6 in dealing with the preparation of these witnesses.

7 MR. MARCUSSEN: Just to try to address some of the facts. This is

8 a situation where the witness actually has not changed his statement in

9 any substantial way. Now, there have been instances where that have

10 happened, but this is actually, in my submission, a situation where there

11 is not a substantial problem in terms of changing the evidence. Now, also

12 we have moved in witness forward because of the decision on K-52 [sic],

13 the original plan was that this witness would have testified next week and

14 we would have had much more time to clarify these issues. In order to try

15 to accommodate the Court and have witnesses available, we fast-tracked the

16 witness. We proofed him last night and this morning only to be able to

17 put him before the Court today.

18 Yes, there are resource issues, yes there are problems, but I

19 think this is a situation where we have done everything we could in order

20 to provide things as speedily as we could to the Defence and make sure

21 that we have witnesses in the court.

22 JUDGE BONOMY: All right. Thank you.

23 Now, Mr. Ackerman, going back to being realistic about -- sorry,

24 Mr. Hannis.

25 MR. HANNIS: Your Honour, if I may, I came down because I heard

1 something Mr. Ackerman said that I thought I needed to address to the

2 Court. Perhaps Mr. Ackerman doesn't remember, but yesterday afternoon I

3 had a conversation with at least one representative for each of the six

4 accused, advising him that this witness had just arrived, he was being

5 proofed by Mr. Marcussen, that we intended to propose him as a 89(F)

6 statement. That he was going to gray that his original ICTY statement was

7 substantially correct. That was going to be his 89(F) statement along

8 with some excerpts from his transcript, as I understood from Mr. Marcussen

9 that he was aware that he was going to do something with that. I pointed

10 out to them -- they understood I had a problem I with the 48-hour rule

11 because we anticipated he was going to be testifying on Thursday and we

12 would have been doing this Tuesday, but now he's testifying on Wednesday.

13 I told them also that if it turned out that he had something

14 substantially new and different, then of course we would understand that

15 they wouldn't -- not be in a position or willing to waive the 48-hour rule

16 because notice wouldn't be adequate for that -- new kinds of things. But

17 I did indicate, and I thought I understood from all of them that if there

18 was not a substantial difference between his original ICTY statement and

19 the transcripts, then -- then they probably wouldn't have a big

20 disagreement about that.

21 Now, I don't know if I misunderstood what Mr. Ackerman said

22 earlier, but that's why I came down, to bring that to your attention.

23 JUDGE BONOMY: Thank you, Mr. Hannis.

24 Now, Mr. Ackerman, you want to address individual items of the

25 transcript?

1 MR. ACKERMAN: Yes, first of all --

2 JUDGE BONOMY: You should do it, bearing in mind that one other

3 way of dealing with this, of course, is to have the same evidence led live

4 if it's --

5 MR. ACKERMAN: Well, I think it will become clear that it's a

6 problem either way. With regard to what Mr. Hannis just said, it's

7 absolutely correct that he came and talked to us all, talked to me about

8 that problem, and I told him I had no objection with regard to an 89(F)

9 statement. I don't believe he ever mentioned excerpts from a transcript;

10 I was quite surprised to receive them last night. And if he did mention

11 them, my mind was elsewhere when that happened. But I don't think so.

12 Now, the problem with the transcript, Your Honour, begins with the

13 65 ter notification. The 65 ter summary and the one, two, three, four,

14 fifth paragraph advises us that this witness will testify that a Serb

15 policeman neighbour came to his home and told him that he must go to

16 Albania or paramilitaries would kill him.

17 That is totally consistent with -- with what he says in his

18 statement, and that is on -- in paragraph on page 3 of the statement,

19 which is destined to become an 89(F) statement. The problem we run into

20 is when we get to this transcript that they now want to put into evidence,

21 which goes beyond the 65 ter summary, they want you to consider testimony

22 from the witness at page 7462 where he says regarding this incident: This

23 policeman who came said: "You have to make -- to get yourselves ready

24 within 15 minutes because they might come. The army and the police will

25 come and they're going to kill you all."

1 So that's one place where it deviates dramatically from what we

2 were told with regard to the 65 ter, and they're now trying to bring that

3 in that direction, in that way. The other place is at page 7472. It

4 begins there. The particular part that I'm concerned about is that part I

5 was referring to with regard to Exhibits 781 and 782. I fully accept

6 Mr. Marcussen's statement that they're not going to use 781 and 782. If

7 they're not going to do that, then they should remove from their

8 transcript exhibit all the references to those and the opinions regarding

9 those that are contained beginning at page 7474 in this transcript

10 excerpt. So those would be the two that I'm -- that I'm -- that -- as to

11 which I have particular concern that they should not be admitted because

12 of the -- for the two reasons that I've already mentioned: One, the 65

13 ter notice; and two, the Court's ruling on Monday.

14 JUDGE BONOMY: Well, I take it, Mr. Marcussen, the second one's

15 easy to deal with.

16 MR. MARCUSSEN: Indeed. I propose that we identify with

17 Mr. Ackerman the relevant parts and file a notice clarifying precisely

18 what page and line numbers should not be included in the evidence.

19 JUDGE BONOMY: Well, just -- can we do it now?

20 MR. MARCUSSEN: Yes, I'll just have to read the passages through.

21 JUDGE BONOMY: Is it document number 3 in your pile? Or is it the

22 next -- is it the next one? No.

23 Mr. Ackerman, I take it it's from line 3?

24 MR. ACKERMAN: Your Honour, actually it begins on 7474 at line 20.

25 JUDGE BONOMY: Oh. It's document 4 then, sorry.

1 MR. ACKERMAN: Yeah.

2 JUDGE BONOMY: And finishes?

3 MR. ACKERMAN: It finishes at line 6 on the next page, 7475.

4 JUDGE BONOMY: Well, it would be line 4 I think would be

5 sufficient.

6 MR. ACKERMAN: Yeah, it would be.

7 JUDGE BONOMY: Line 4.

8 Is that acceptable, Mr. Marcussen?

9 MR. MARCUSSEN: Indeed, yes. Thank you.

10 JUDGE BONOMY: So by agreement we can exclude or refuse to admit

11 these lines of the transcript and that will save you filing anything. All

12 right.

13 MR. MARCUSSEN: That's --

14 JUDGE BONOMY: Now, the question of the 65 ter summary confining

15 the allegation to the activity of paramilitaries and the transcript

16 referring to the army and the police.

17 MR. MARCUSSEN: Your Honour, this material has been available to

18 the Defence for a long time, both the transcript and the statement. We

19 have found ourselves now in the course of the trial where terms such

20 as "paramilitaries" are given certain interpretations. Now, in our

21 submission it is very difficult when a witness refers to paramilitary and

22 that is put into a statement, and the witness does not use the

23 term "paramilitary" in a specifically technical way, And the witness then

24 later on clarifies that what they mean is, well, police, reserve police,

25 the kind of things that have happened during this trial. This is another

1 example of that. We submit that this -- that evidence like this cannot be

2 excluded on this basis. The Chamber should hear the evidence, hear what

3 the witnesses have to say about the persons they saw on the relevant days,

4 and then make a determination of who they -- who the perpetrators were, if

5 it is at all possible to identify them.

6 In our submission, again we come back to the JCE point. The

7 accused -- if the case ends up being a case solely about Article 7(3) of

8 the Statute, then it might indeed be very relevant whether or not the

9 perpetrators were police or military. For the -- to the extent that we're

10 relying on -- or we end up in a case where the case is about a joint

11 criminal enterprise, ordering and planning, it is our submission that it

12 really doesn't matter. The core of the Prosecution's case is that the

13 accused were members of a joint criminal enterprise with the overall

14 purpose of altering the ethnic balance in Kosovo with a view for the Serbs

15 to hold on to Kosovo. They did so through a number of acts, including the

16 commission of a number of crimes, some of which are charged in the

17 indictment. The way the JCE was executed was that various members of the

18 JCE used structures that they had under their control to have the crimes

19 committed.

20 As long as you're -- as long as the perpetrators on the ground

21 belonged to one of the structures that the Prosecution submits were under

22 the control of one of the accused, all the accused will be responsible in

23 our submission for the crimes committed and charged in the indictment.

24 So we're concerned about this heavy emphasis on definitions used

25 by a witness that are not technical definitions. We take the point that

1 some of this might have been clarified had more investigation been carried

2 out, had more stuff been done, speaking more to the witnesses. But we

3 find ourselves in a situation where the witnesses come to the court and

4 clarify what they meant when they said "paramilitary," and really we

5 submit that such evidence must be admissible and it's important for

6 Your Honours to hear that kind of evidence. Thank you, Your Honour.

7 JUDGE BONOMY: Thank you, Mr. Marcussen.

8 MR. ACKERMAN: Your Honour, may I have just five seconds more

9 maybe?

10 JUDGE BONOMY: Well, I hope it's important.

11 MR. ACKERMAN: I think it is.

12 Your Honour, this 65 ter notification was given to us very

13 recently. They knew about this testimony in Milosevic since July of 2002.

14 Now, if it was their intention to have this witness testify that what he

15 said in his statement was not correct, that when he talked about

16 paramilitaries he didn't really mean that, that he meant army and police,

17 then we should have been notified of that in the 65 ter. But we're

18 entitled to -- we're entitled to accept when they tell us in the 65 ter

19 that all he's going to talk about is paramilitaries, that that's all he's

20 going to talk about and that they're rejecting what he said in Milosevic.

21 And I think that's a fair position for us to take. I don't think we're

22 required to sit here and guess what they mean in their 65 ter; it has to

23 be precise. And I think that's important.

24 JUDGE BONOMY: Thank you. We'll take a moment to consider the

25 submissions made.

1 [Trial Chamber confers]

2 JUDGE BONOMY: We are fairly anxious not to be steeped in history

3 at the conclusion of the evidence in the case and do see force in the

4 general proposition that before evidence of events around 1990 should be

5 led, then it is important to demonstrate the link to the events in 1999.

6 Whether the link's established is a matter to be resolved later in light

7 of the weight we feel we can give to evidence so far removed from the

8 events of 1999 when we look at the whole circumstances. But bearing in

9 mind what's said in the indictment and the submission made by

10 Mr. Marcussen, we do not consider it appropriate to hold this evidence

11 inadmissible. What weight we shall give it in due course is another

12 matter, but we are influenced in this case in particular by the fact that

13 the witness is speaking of events that happened to him personally. So the

14 statement in its entirety we will hold admissible.

15 So far as the first objection taken by Mr. Ackerman is concerned,

16 that is to the late intimation of changes to the transcript, we do not

17 think these are of any real significance in the circumstances and we repel

18 that objection. We would not hold the extracts from the transcript

19 inadmissible on that ground.

20 We are concerned, however, about the way in which the Prosecution

21 have failed to update their case in light of their knowledge since the

22 year 2002 of the evidence that this witness would give. However, we think

23 it is an unrealistic approach to the conduct of this trial to pick our way

24 through the evidence and exclude some explanation that would be necessary

25 to give us a full account of what the witness claims he experienced. And

1 therefore, we do not exclude any part of the transcript, apart from the

2 part excluded by agreement. We remind the Prosecution of their obligation

3 to seek from the Tribunal -- from the Trial Chamber authority to revise

4 the 65 ter statement when there is a significant additional matter to be

5 led in evidence or a significant alteration to be made in the evidence

6 which the witness will present. The Trial Chamber should control that

7 exercise, and there was a failure on this occasion to take that basic

8 step. And in future, failures to comply with our ruling on that will not

9 find favour.

10 If, however, the late notification - because that's a separate

11 matter - the late notification causes foreseeable prejudice to the

12 Defence, then we will accede to any motion that's now made to delay

13 leading of this evidence to enable the 48-hour rule to be complied with

14 and any necessary investigations to be carried out. That would, of

15 course, mean that the witness would have to come back and we would need to

16 proceed now with another witness.

17 Mr. Ackerman.

18 MR. ACKERMAN: Your Honour, I will not make such application, but

19 I would like some clarification.

20 JUDGE BONOMY: Yeah.

21 MR. ACKERMAN: Our practice right now is that if the witness is

22 going to be testifying live and the Prosecution, therefore, is not going

23 to be using a statement or testimony from the Milosevic case, that it's

24 then our obligation if we want to use it to put it into the e-court

25 system, make it an exhibit, notify the Prosecution, and do all those

1 things that are in the order to be able to use it. Now, if it's the

2 position of the Chamber that the statement of the witness and the

3 transcript from Milosevic is automatically available to everybody for use

4 during examination of the witness without notice, then that would save us

5 an extraordinary amount of time. But we had absolutely no notice that the

6 statement of Milosevic -- the Milosevic trial transcript was going to be

7 used during this witness's testimony, none, zero.

8 JUDGE BONOMY: I'll ask the Prosecution their position on this

9 because it may be that this is a procedure that could be followed.

10 Mr. Marcussen.

11 MR. MARCUSSEN: Your Honour, I think Mr. Hannis just explained

12 that the Defence was put on notice yesterday afternoon about the use of

13 the excerpts from the Milosevic transcripts --

14 JUDGE BONOMY: No, no, but we're dealing now with a particular

15 question and it's a question of general application. If what the Defence

16 seek to use is the previous statement made in the -- in evidence in the

17 Milosevic trial by a witness who's going to be here, is there any need

18 for compliance with the rule at moment that they include on a list as

19 soon as a witness commences his evidence the transcript as a potential

20 exhibit?

21 MR. MARCUSSEN: We would submit that, yes, it might be a

22 formality, but I think it is important for us to know what statements the

23 Defence intend to use for the purpose of cross-examination. Furthermore,

24 there might be an issue of whether or not the entire transcript or, for

25 that matter, statement becomes an exhibit or whether it only should be the

1 portions of the statement or transcript that have been put to the witness

2 during cross-examination. So I would submit that we should keep the rule

3 as it is. Thank you.

4 JUDGE BONOMY: Well, the last point is one that would be dealt

5 with on a case-by-case basis and doesn't really address the issue.

6 I think as presently advised we should adhere to the present --

7 the rule that was made, Mr. Ackerman, and -- but I leave it to you to draw

8 to our attention any particular difficulty you're experiencing in

9 complying with the rule. But at the moment, I don't think I would like to

10 jump to the point where preparation could be rendered more chaotic than it

11 is at the moment. And I have another comment to make about that before

12 concluding.

13 There is one other matter also to be dealt with, and that is the

14 objection you take to the individual exhibits, which are referred to in

15 the statement. Whether or not you are correct I think can only be

16 determined when we've seen them and heard what the witness has to say

17 about them. So the question of whether they're exhibited can be dealt

18 with at the end of his evidence now that we're alerted to that being a

19 potential bone of contention between the parties.

20 The final general point I wish to make is to the Prosecution and

21 that is that better preparation of this case is going to save a great deal

22 of time. We've now used an hour and five minutes of today's hearing

23 dealing with an issue which would have been dealt with in a different way

24 if notification of all of the material to be used with a witness was made

25 more timeously. Now, I know the explanation that you will offer in

1 response being the changes to the arrangement for the attendance of

2 witnesses that had been made. I'm afraid there's going to have to be a

3 bit more thought given to the planning of witnesses' attendance and

4 preparing them so that this situation doesn't arise again so far as it can

5 be avoided.

6 Now, Mr. Ackerman, is there something else you wish to say?

7 MR. ACKERMAN: Your Honour, I fully accept the Prosecution's

8 position that we should notify them if we're going to use the transcript

9 from Milosevic or excerpts therefrom. Why then are they not required to

10 notify us? I mean, that just doesn't -- that's not fair.

11 JUDGE BONOMY: I hope I've made it clear that that won't happen

12 again. It will be up to them to make an application to alter the 65 ter

13 statement, and I think I made it clear that a failure to do that will not

14 be met sympathetically.

15 MR. ACKERMAN: So this is a one-time pass.

16 JUDGE BONOMY: And in the circumstances of this witness where

17 there has been a measure of uncertainty about the timing because of other

18 decisions that have arisen, we are allowing it. But I was taking the

19 opportunity to make it clear that the position will be different in the

20 future.

21 MR. ACKERMAN: Thank you.

22 JUDGE BONOMY: So now, please, can we have Mr. Berisha.

23 MR. MARCUSSEN: While we wait, I should maybe just follow usual

24 good practice of stating what paragraphs in the indictment this testimony

25 is relevant to.

1 JUDGE BONOMY: [Microphone not activated]

2 MR. MARCUSSEN: The evidence of this witness is particularly

3 relevant to paragraphs 72(d), 75(d), 77(d), Schedule D to the indictment

4 circumstantially, and paragraph 88 of the indictment.

5 JUDGE BONOMY: Thank you.

6 [The witness entered court]

7 JUDGE BONOMY: Good afternoon, Mr. Berisha.

8 THE WITNESS: [Interpretation] Good afternoon.

9 JUDGE BONOMY: Would you please make the solemn declaration to

10 tell the truth by reading aloud the document which will now be placed

11 before you.

12 THE WITNESS: [Interpretation] Yes.

13 I solemnly declare that I will speak the truth, the whole truth,

14 and nothing but the truth.

15 JUDGE BONOMY: Thank you. Please be seated.

16 Mr. Berisha, this Trial Chamber already has before it a great deal

17 of the information that you have on the matters on which you are being

18 asked to give evidence. We have a written statement, we have

19 supplementary information bringing the statement up-to-date, we have parts

20 of the written transcript of the evidence you gave in the trial of

21 Slobodan Milosevic. So we have a lot of material which we have already

22 read. The reason for the hearing today is to enable counsel for the

23 Prosecution and for the accused to ask you questions, either to add to the

24 information, to clarify things, or to challenge what you've said. And

25 because we have so much and we want to get as much as we can, it's

1 important that you concentrate on the particular questions that are asked

2 of you, and try to confine your answers to the point that the question

3 relates to so that we get as much new information as possible. We don't

4 want to go over again, unless we have to, but we'll try to avoid as much

5 as possible going over again the information you've already given.

6 The first person to ask questions will be for the Prosecution, and

7 that is Mr. Marcussen.

8 Mr. Marcussen.

9 MR. MARCUSSEN: Thank you, Your Honour.

10 WITNESS: HALIT BERISHA

11 [Witness answered through interpreter]

12 Examination by Mr. Marcussen:

13 Q. Good afternoon, Mr. Berisha.

14 A. Good afternoon.

15 Q. Mr. Berisha, you gave a statement to the Office of the Prosecutor

16 on the 17th of August, 2002. Is that correct?

17 A. Yes, that's correct.

18 JUDGE BONOMY: I think 2001, but --

19 MR. MARCUSSEN: I do indeed stand corrected. Thank you,

20 Your Honour.

21 Q. Mr. Berisha, over the last two days have you had a chance to read

22 the Albanian translation of that statement?

23 A. Yes.

24 Q. And did you bring -- did you notice a few things in that statement

25 that you wished to be corrected?

1 A. Only on two or three places I had to make some corrections; it

2 referred to some dates.

3 Q. Is it correct that in -- there is mention in paragraph 2 of your

4 statement of the Directorate of Civil Defence. That should have been the

5 popular defence?

6 A. Yes, it was the Secretariat of Popular Defence, not of civilian

7 defence.

8 Q. And also in the fifth paragraph of your statement, that is the

9 fifth paragraph of page 2 of the English; the first paragraph on page 3 of

10 the B/C/S; and the second paragraph on the third page of the Albanian

11 translation, there is mention that on the 25th of March, members of the

12 Kuci family passed by your house. That should have been the Berisha

13 family. Is that correct?

14 A. Yes, the Berisha family.

15 Q. And finally, there was a correction to the first paragraph on page

16 4 of the English version; the third paragraph on page 4 of the B/C/S

17 version; and the second paragraph on page 5 of the Albanian version which

18 relates to your brother going to -- towards Albania in the -- via Prizren

19 and returning. And you reiterated that the corrections you had made in

20 the Milosevic trial to that passage was the correct one. Is that true?

21 A. Yes.

22 Q. Now, except for those corrections, is the rest of the statement a

23 correct reflection of your recollection of the events as they occurred at

24 the time?

25 A. Yes. Everything is correct.

1 MR. MARCUSSEN: We would be tendering then -- we have discussed it

2 earlier, but we will be tendering then P2326 as a Prosecution exhibit.

3 JUDGE BONOMY: Thank you.

4 MR. MARCUSSEN:

5 Q. Mr. Berisha, also when you met with representatives of the

6 Prosecution were you shown a number of excerpts from your testimony in the

7 Milosevic case?

8 A. Yes.

9 JUDGE CHOWHAN: We are not getting the exhibit.

10 JUDGE BONOMY: The exhibit number, Mr. Marcussen, I think it

11 was --

12 MR. MARCUSSEN: Is it for the transcript or --

13 JUDGE BONOMY: It's for --

14 MR. MARCUSSEN: Or for the statement.

15 JUDGE BONOMY: No, it's for the original statement. It's P2326

16 and it's to complete the transcript. Thank you.

17 MR. MARCUSSEN: Thank you, Your Honour.

18 Q. Mr. Berisha, was -- were the excerpts of the transcript read back

19 to you and translated into Albanian?

20 A. Yes.

21 Q. And did you make some corrections to the transcript?

22 A. Only two or three corrections about things that were incorrect in

23 the transcript.

24 Q. And this morning have you seen a copy of the transcripts where

25 those corrections had been -- has been written in, in hand?

1 A. Yes.

2 Q. Now, those corrections having been made, do the excerpts of the

3 transcript reflect your recollection of the events as they occurred?

4 A. Yes, as I have described them they are correct.

5 Q. Thank you.

6 MR. MARCUSSEN: Your Honours, then I would like to tender P2325 as

7 a Prosecution exhibit.

8 JUDGE BONOMY: Thank you.

9 MR. MARCUSSEN:

10 Q. Mr. Berisha, as the President pointed out to you, the Chamber and

11 the Defence have had an opportunity to read both your statement and the

12 excerpts of your testimony in the Milosevic case thoroughly and they are

13 well aware of the contents of your evidence. So I will only be going over

14 a few points with a view to clarify some issues, and then I'll be asking

15 you some questions about documents that were attached to your statement.

16 But really, we're just trying to clarify some specific points in this

17 regard.

18 You explain in your statement that you had been given a pistol

19 when you became mayor.

20 A. Yes.

21 Q. What was the purpose of giving you that pistol?

22 A. I was issued the pistol for my personal protection, and it was a

23 property of the secretariat of the interior, not my personal property. It

24 was an official pistol.

25 Q. I understand your evidence to be that the pistol was taken away

1 from you again in August of 1999. Is that correct?

2 A. On 5th of August, 1990.

3 Q. Thank you, yes, absolutely correct. I'm the one making the

4 mistakes here today. In August 1990 had there been changes in the

5 political situation that led to the request that you return the pistol?

6 A. In 1990 big changes occurred. The authority of the local

7 authorities fell, and the authority of police increased in Suhareke

8 municipality. And at that time everything was in the hands of the police

9 and not in the hands of the president of the municipality. Therefore, on

10 5th of August, 1990, in the courtyard of the municipality they had

11 prepared a group of young men to be sent for recruitment in Nis. At that

12 time, three policemen came wearing vests, anti-bullet vests, and they

13 submitted me a summons to report to the commander of the police who had

14 come from Belgrade in order to hand over my official pistol. And it is

15 then when I realised that the authority was in the hands of the police and

16 no longer in the hands of the municipal authorities. So the role of the

17 president of the municipality decreased, and the role of the police

18 increased and the police actually took over everything.

19 Q. Thank you.

20 A. If you allow me, for this -- what happened, I informed the

21 Secretariat of People's Defence in Pristina, Slobodan Bojic, that is to

22 say for the case of my pistol being returned. He just said that he would

23 look into this matter, but that was only in words and nothing else

24 happened. He was a colonel by rank.

25 Q. Thank you. There's another issue that I'd like to clarify. On

1 the 5th of April, 1991, when you were dismissed from the office, I

2 understand that you knew two of the people who came to your office, but

3 there were three security officers, state security officers you say, that

4 were with them. Did you know the three security officers?

5 A. No, I didn't know them.

6 Q. So how come you know that they were from state security?

7 A. Some clerks in the Municipal Assembly recognised them, and they

8 told me that they were officers of the Serbian State Security, while two

9 others for clerks in the Municipal Assembly and they handed over me the

10 decision adopted by the Assembly for the dismissal of the Albanian

11 workers, which we found injust because we were elected -- I was elected by

12 the members -- the delegates of the Suhareke Municipal Assembly.

13 Q. Thank you. Now, the --

14 JUDGE BONOMY: Just a second. You say they handed over to you the

15 decision adopted by the Assembly for the dismissal of the Albanian

16 workers.

17 THE WITNESS: [Interpretation] Serbian Assembly.

18 JUDGE BONOMY: Serbian Assembly, thank you.

19 THE WITNESS: [Interpretation] Yes. It bears the date 4th of

20 April, 1991, and on 5th of April, they came to my office and told me to

21 leave.

22 [Prosecution counsel confer]

23 MR. MARCUSSEN:

24 Q. Halit Berisha, how many people lived in Suva Reka town at that

25 time?

1 A. At that time it had about 50 to 60.000 inhabitants, and as for the

2 origin about 95 per cent were Albanians and the other 5 per cent were

3 Romas and other nationalities.

4 Q. Were the other 5 per cent primarily Romas, as the transcript say,

5 or were they primarily Serb?

6 A. Mostly Serb and about 2 to 300 Romas. As for Serbs, they were

7 about 3.400.

8 Q. And for the whole of the municipality, of the municipality of Suva

9 Reka, how many people lived there?

10 A. At that time, approximately 60.000 people lived there.

11 Q. And in Suva Reka town itself, just the urban part of Suva Reka,

12 how many people lived there?

13 A. At that time the Suhareke town had about 8.000 inhabitants. We

14 were not able to have the exact statistics because the 1991 census was not

15 carried out in Kosova. So we did not have the exact number of the

16 population in Kosova.

17 Q. Thank you, Mr. Berisha.

18 MR. MARCUSSEN: I'd like to now put Exhibit P615, page 52 on the

19 monitor, please. And could we give it one twist to the left, please, so

20 we get it turned horizontally? That should have been to the --

21 JUDGE BONOMY: Is that clockwise or anti-clockwise?

22 MR. MARCUSSEN: Clockwise. We're zooming in I think.

23 JUDGE BONOMY: Turn it, please.

24 MR. MARCUSSEN: And let's try to zoom in just one more time and

25 see how that looks. Right. Could we move it up -- well, could we move

1 the picture down a bit. Oh, sorry, you're seeing it -- the result I would

2 like to obtain is that we get a bit more of the -- where the two roads are

3 meeting, the two red roads, I'd like to be able to see as well, but I'd

4 like us to zoom in.

5 Q. Halit Berisha, can you see the map clearly on your screen?

6 A. Yes.

7 MR. MARCUSSEN: I think we'll need the assistance of the usher

8 just to do a few marks on the -- on the map.

9 Q. You describe in your statement that on the 24th of March of --

10 maybe before, but there were a number of strategic positions occupied by

11 snipers of the police or the military. You mentioned that there were

12 snipers in the post office building. Where on this map is the post office

13 building?

14 A. First of all, this is the road from Pristina to Prizren. The red

15 line here, just on the red line itself, is the police station. And in

16 front of the police station there were two rocket-launchers positioned.

17 Q. Mr. Berisha, let's just do first the positions that I mentioned.

18 If we could indicate where the post office is, please.

19 A. Yes, the post office is here.

20 THE INTERPRETER: Interpreter's correction, it's not

21 rocket-launchers, it's mortars.

22 MR. MARCUSSEN: Thank you.

23 Q. Halit Berisha, you just made a dot. Could you put an A at that

24 place where the post office is.

25 A. [Marks].

1 Q. And now that you have marked where the police station is, maybe

2 just so that it's clear on the transcript what we're talking about, could

3 you put a B where -- sorry, where the police station is.

4 A. [Marks].

5 Q. Thank you. So A is the post office, B is the police station.

6 You also mentioned that --

7 A. Yes.

8 Q. -- there was a position in the bell-tower. Where is that on the

9 map, if you first can make a dot and then put a C next to it.

10 A. The tower that we mentioned is at the clinic which is

11 approximately here. This is the tower.

12 Q. And could you put a C like Charlie at that point.

13 A. [Marks].

14 MR. MARCUSSEN: Your Honours, I have a few more dots to make. I

15 don't know whether you want to break now or whether we should do it when

16 we're finished.

17 JUDGE BONOMY: Well, let's finish the map and then we'll break

18 off.

19 MR. MARCUSSEN:

20 Q. Halit Berisha, I think in your transcript in the Milosevic case

21 you indicate that there were also a position close to the winery. Where

22 is that?

23 A. I didn't understand the question -- oh, yes. It is here, the

24 winery is here. All this here is the winery.

25 Q. Please put a D at that place underneath the dot you just made.

1 A. [Marks].

2 Q. And I think you also have mentioned that there was a position at

3 the -- at the old post office. Is that correct?

4 A. The old post office is somewhere here.

5 Q. If you could make -- put an E like Eric or echo at that place.

6 A. [Marks].

7 Q. Okay. And were there any other positions where there were snipers

8 stationed that you are aware of?

9 A. Yes. This is where the Balkan Hotel is.

10 Q. And would you put a -- we have reached an F like fox-trot.

11 A. [Marks].

12 Q. Thank you. Are those -- are those the sniper positions you are

13 aware of in Suva Reka town?

14 A. Yes.

15 Q. Thank you. Now while we have the map on the screen, could you

16 indicate where your house was?

17 A. My house was here, right behind the post office. Somewhere here.

18 Q. Could you put a G like George at that place?

19 A. [Marks].

20 Q. And then finally could I ask you to indicate where the mosque

21 was.

22 A. The mosque was here. This is where the house is, approximately

23 here.

24 Q. And if you would put an H there, please, like hotel.

25 A. [Marks].

1 Q. I think we need two lines a bit -- the lower part of the H is very

2 difficult for me to see on the screen, just so we have the record clear

3 later on.

4 A. [Marks].

5 Q. Perfect. Thank you.

6 MR. MARCUSSEN: Your Honour, I propose that we take the break here

7 and then we'll resume afterwards.

8 JUDGE BONOMY: Very well.

9 MR. MARCUSSEN: But I would like to make this an exhibit maybe

10 before, I'm reminded kindly by our court officer. We'll make this an

11 exhibit.

12 THE REGISTRAR: That would be IC40, Your Honours.

13 JUDGE BONOMY: Thank you.

14 We'll resume at ten past 4.00.

15 --- Recess taken at 3.48 p.m.

16 [The witness stands down]

17 --- On resuming at 4.12 p.m.

18 JUDGE BONOMY: Mr. Marcussen.

19 [The witness entered court]

20 MR. MARCUSSEN:

21 Q. Mr. Berisha, you say in your statement that on the 28th of March

22 you -- excuse me. I'll go a little back. I'm on the wrong page. My

23 apologies, Mr. Berisha.

24 On the 25th of March a number of family members, 20 to 30 family

25 members from the Berisha and the Ramadan Berisha family passed by your

1 house, and you say in your statement that they told you that people had

2 been killed and robbed near their houses and they were fleeing from the

3 Serbs. Did you see yourself the people that they were fleeing from?

4 A. On the 25th of March, 1999, at about 6.00 in the morning, myself

5 and my brother Jashar were in our courtyard where at that time our cousins

6 from the other side of the street, they were leaving. Some were still in

7 their slippers, and they told me --

8 JUDGE BONOMY: Just a moment. The question -- the question is

9 very specific. Did you see the people from whom they were fleeing? It's

10 either yes or no.

11 THE WITNESS: [Interpretation] Yes.

12 JUDGE BONOMY: Well, now Mr. Marcussen will ask you more. Thank

13 you.

14 THE WITNESS: [Interpretation] I saw those people, and they were

15 leaving because of the Serbian army and the Serbian police.

16 MR. MARCUSSEN:

17 Q. Did you yourself see the people you describe as the Serbian army

18 and the Serbian police? Could you see them?

19 A. I saw the people who were leaving, but I did not see the police.

20 But they told me, the people who were leaving told me that they were

21 leaving because of the Serbian police and army. They were very scared.

22 Q. Do you remember that they described the people they were fleeing

23 from as members of the police and the army?

24 MR. ACKERMAN: Your Honour, that's getting pretty leading. I

25 object.

1 MR. MARCUSSEN: He just answered: Saw them leave because of the

2 police and the army.

3 JUDGE BONOMY: So why do you ask the question? I mean, it's a

4 very, very leading question surely.

5 MR. MARCUSSEN: I withdraw. I can -- I am fine with the record as

6 it stands. We can leave it as it is. So I withdraw that question.

7 JUDGE BONOMY: Thank you.

8 MR. MARCUSSEN:

9 Q. Mr. Berisha, I'll jump ahead in time in your statement, and

10 I'll -- would like to ask some questions about the 26th of March, 1999.

11 You say in your statement that your brother on the morning of the 26th of

12 March, 1999, went to the petrol station where he worked. Do you remember

13 what he was wearing that day?

14 A. He was manager of the petrol station, Beopetrol, he went to work

15 at about 8.00. He had a jacket with "Beopetrol" written on the back. He

16 had a jumper, multi-coloured jumper inside. He also was wearing jeans and

17 sneakers, red sneakers. Underneath he had some long underwear with white

18 and red stripes. I had a similar pair myself, that's why I know. At that

19 night only myself and my wife stayed at home. All the rest of the family

20 had left home.

21 Q. Was your brother also in your house that night?

22 A. Yes. On the night of the 25th to the 26th of March, yes, he was

23 in the same room with me, sleeping in the same room.

24 Q. And how do --

25 JUDGE BONOMY: Mr. Berisha, could you tell us again what he was

1 wearing under his jeans.

2 THE WITNESS: [Interpretation] He had jeans, but under them he had

3 track-suit -- bottom part of the track-suit, but also some underwear which

4 was long-Johns with stripes, red and white. It was very cold; that's why

5 he was wearing so many clothes.

6 JUDGE BONOMY: Thank you.

7 Q. What was the colour of the track-suit if you remember or the

8 bottom of the track-suit?

9 A. The -- they were blue, blue, jeans.

10 Q. And the -- and the -- you just explained to Judge Bonomy that he

11 was wearing the bottom part of a track-suit and then he was wearing some

12 long underwear. But the track-suit, do you remember the colour of that?

13 A. Yes. The jacket was blue and on the back of the jacket there

14 were -- there was the word "Beopetrol" because their enterprise was called

15 like that, their company.

16 Q. Okay. Maybe we'll get back to that. I don't know if there's a

17 translation issue, but did you -- since -- since the 26th of March, have

18 you seen any of your brother's clothes again?

19 A. Some of his clothes I was able to see sometime in July 1999, after

20 I came back from Albania in the mass grave between Prizren and Suhareke.

21 It's Kroj i Popit, the place is called Kroj i Popit, and at the place of

22 the exhumation we found many things. Among other things we found part of

23 his leg and we could see the clothes that he was wearing underneath. We

24 also found things belonging to other people there.

25 MR. MARCUSSEN: I'd like to show Exhibit P133, page 6, please.

1 Q. And while we wait for that to come up, are you aware of whether a

2 photograph was taken of the clothes that you identified at the exhumation

3 site?

4 A. It's not this photograph.

5 MR. MARCUSSEN: Could I ask that this photograph be turned

6 anti-clockwise, please.

7 Q. Mr. Berisha, just wait a minute, please.

8 Now, on this photograph do you see the piece of clothing that you

9 identified?

10 A. Yes.

11 Q. Can you -- there are numbers on the different items on the

12 photograph. Could you read the number of the item that you saw that day?

13 A. KRA 1072, that belonged to my brother.

14 Q. Thank you.

15 A. The other things belonged to other people.

16 Q. Thank you. Mr. Berisha, have you also given a blood sample to a

17 forensic team?

18 A. Yes. My brother Eqrim and my sister Aziza gave a blood sample for

19 identification. And in September I was informed by the forensic medical

20 team at UNMIK that my brother was identified in the mass grave of

21 Batajnica at Belgrade. The last victims were returned on the 30th of

22 June.

23 Q. Thank you.

24 MR. MARCUSSEN: I will again ask the Judges and the --

25 JUDGE BONOMY: Sorry, which year was that, Mr. Marcussen?

1 MR. MARCUSSEN: That the blood sample was given?

2 JUDGE BONOMY: No, no, the identification of his brother's body at

3 Batajnica.

4 MR. MARCUSSEN: I will have to look at --

5 JUDGE BONOMY: You --

6 MR. MARCUSSEN: I would have to find the --

7 JUDGE BONOMY: Well --

8 MR. MARCUSSEN: I'm not answering this question at this moment.

9 Maybe Mr. --

10 JUDGE BONOMY: Mr. Berisha, you said you were told in September

11 that your brother had been identified in a gave at Batajnica. September

12 in which year?

13 THE WITNESS: [Interpretation] The UNMIK office informed me. It's

14 the current year, 2006, September 2006.

15 JUDGE BONOMY: Thank you.

16 MR. MARCUSSEN:

17 Q. Mr. Berisha, I would now like to turn to the events on the 26th of

18 March, 1999. You described in your statement how you heard an explosion

19 and then you saw the minaret being -- having been destroyed. We need a

20 bit more details about that. Now, first of all when you heard the

21 explosion, where were you?

22 A. It wasn't the 26th of March, it was the 28th of March, 1999. It

23 was Bajram, which is a Muslim holiday, and at 11.55 a.m. I was in my

24 courtyard when I heard a big explosion. And normally I could see the

25 minaret from my courtyard, but from that moment on I couldn't see it

1 anymore.

2 Q. Now, from -- from your courtyard can you see the whole mosque or

3 only part of the mosque?

4 A. The minaret. It was a tall building. It was about 45 metres

5 tall.

6 Q. And when you had heard the explosion, I understand you called a

7 neighbour to inquire about what had happened.

8 A. Yes.

9 Q. Did they -- had -- did they tell you who they -- had they seen

10 what had caused the explosion?

11 A. There is a family there called Elshani and they live very close to

12 the mosque, and they had seen the explosion and the collapse of the

13 minaret. Fortunately it did not fall on to their house; it fell on the

14 other side, so it did not cause any damage to their house. At that time

15 they had seen a vehicle of the army, a gazika, in camouflage colours.

16 It was a red vehicle. That was the only car that moved at that time.

17 It went in the direction of Birac and it was a military vehicle.

18 Q. Did they tell you whether they had seen any persons getting in or

19 out of the vehicle?

20 A. No, it was those people who saw them because they lived very close

21 to where this happened.

22 Q. Did they describe the people they saw? In order, did they say

23 what they looked like, whether they were in uniform, for example?

24 A. They saw the soldiers in uniforms and the blowing up of the

25 minaret, and they were scared because of that big explosion.

1 Q. Another point of clarification --

2 JUDGE BONOMY: Before you move on from -- is this a clarification

3 that exists in the transcript?

4 MR. MARCUSSEN: It partly exists in the transcript, but I'm not

5 sure that it's clear from the transcript that --

6 JUDGE BONOMY: When he says he rang a relative in the statement,

7 is it now -- is the evidence now different or is this an elaboration of

8 the evidence?

9 MR. MARCUSSEN: I think it's only an elaboration of the evidence;

10 that's my understanding.

11 JUDGE BONOMY: Mr. Berisha, is -- are the Elshani family related

12 to you?

13 THE WITNESS: [Interpretation] Yes, my cousin is married in that

14 family --

15 JUDGE BONOMY: Thank you.

16 THE WITNESS: [Interpretation] In the Elshani family.

17 MR. MARCUSSEN: Thank you, Your Honour.

18 Q. You -- you have also mentioned in your statement that later on in

19 the day you were told by a Serb policeman that you should go to Albania or

20 you would be killed. I understand from the transcript in the Milosevic

21 case that at the time you gave the statement the name of this police

22 officer wasn't recorded, but in the Milosevic case you did remember his

23 name. What was the name of this person?

24 A. Yes, he was a reservist policeman, Novic, Radovan.

25 Q. Before --

1 A. He wore a police uniform because I could tell the colours of the

2 police uniforms, because they were blue, while the army uniforms were

3 green.

4 Q. The uniform he was wearing on that day, was it -- was it blue or

5 different kinds of blues? Was there a pattern on it?

6 A. It was blue. While the dominating colour was blue, but it was

7 camouflage, it had a pattern.

8 Q. Thank you. Now, before you saw Djura on that day, did you already

9 know that he was a reserve police officer?

10 A. Yes.

11 Q. How did you know that?

12 A. Well, I knew that because he was a neighbour and I knew him very

13 well, and everybody in my family knew him.

14 MR. MARCUSSEN: I would like if we could see Exhibit P1807.

15 Q. Do you recognise this building?

16 A. Yes, this is the mosque.

17 MR. MARCUSSEN: And could we see the second page of this exhibit,

18 please?

19 THE WITNESS: [Interpretation] Yes, the minaret which was blown up

20 and collapsed.

21 MR. MARCUSSEN:

22 Q. Thank you. Now, once again I'll jump in your evidence and I'll

23 ask you about a person you saw on the -- you say in your statement that

24 you saw on the -- on the 16th of May, 1999. In your statement he is

25 described as Misko Nisavic. What position did he have?

1 A. Yes.

2 Q. Which -- what --

3 A. His name was Nisavic, Milorad, and his pseudonym was Misko.

4 Q. And --

5 A. I knew him personally. And on the 15th of May, some members of my

6 family were staying at a house when the police came and surrounded them.

7 And the police notified him. He came to this house, and he told that they

8 had to come to report at the municipality. He recognised my son, and he

9 told him that I had to report as well.

10 Q. Thank you. This officer that you reported to, what part of the

11 police did he belong to?

12 A. State security of Serbia or Yugoslavia, as it was called.

13 Q. And I understand from your -- your statement and the Judges on the

14 defence, we have this as well, that you were not harmed and you were

15 allowed to leave shortly after that, and you explained in your statement

16 how there would be a humanitarian organisation that would come.

17 Now, on the 21st of May, 1999, you described that six members of

18 the police came to your home and you mention Andrejevic as being a police

19 officer that you knew and you had 15 minutes to leave to Albania and you

20 would -- now, this person, did you know him before this particular event?

21 A. Yes, this happened on the 21st of May, 1999, at about 10.00, 10.00

22 a.m. when Andrejevic came, Sinisa Andrejevic. He is the son of Andjelija

23 and Miodrag Andrejevic. They were teachers. They came to the house where

24 we were staying which was my aunt's house and they told us that you have

25 to get ready in 15 minutes and go to Albania and you will never see this

1 land again. I knew him. He was wearing a police uniform, blue, and they

2 were armed. They had Kalashnikovs.

3 Q. So before this event you knew him and you knew that he was a

4 police officer. Is that what you are saying?

5 A. Yes, I knew him and his parents.

6 Q. Okay. Then you explain in your statement how you subsequently

7 left with the convoy. Those who didn't have their transport themselves,

8 there were buses and two trucks. You left for Albania and you explain how

9 your identity papers were taken away from you. And then you explain that

10 you -- well, you were for a while in Albania in a refugee camp, and then

11 you returned to Kosovo. Now, there's a slight -- I think we need to

12 clarify, although it's not so important to your evidence. But there are

13 two different dates for when you returned. One is the 23rd of June, 1999,

14 and the other is the 13th of June, 1999. Which one is correct?

15 A. No, I went back on the 23rd of June, 1999. It was 8.00 in the

16 morning when I got home.

17 Q. Thank you. Now, I'd like -- when you came back, you have

18 explained that you started -- you took up a function in the municipal

19 building again on the 8th of October, 1999. And you -- you then collected

20 some documents. I'd like to talk about that for a little bit. First

21 off -- excuse me, just one minute. Now, you provided a list of documents

22 to us. Where did you find those documents?

23 A. On the 8th of October, 1999, -- before that there was an

24 administrator of UNMIK who was in charge of setting up a board that would

25 manage the commune, and I was part of that. I was given the office of

1 Stanislav Andjelkovic, the former mayor, and I found in that office most

2 of the documents -- all of the documents that I have brought here, most of

3 the documents I found in that office.

4 Q. Could you describe to us -- you say you found them. Where in the

5 office were they placed?

6 A. There were some drawers and I found them in the drawers. I found

7 the documents, I put them in order -- I found other documents as well, not

8 only the ones that I've brought here. I photocopied these and I gave them

9 to the Tribunal because I thought they were useful in explaining the

10 events that happened after 1991, after I was dismissed from my job, to the

11 day when they left the offices of the municipality in -- on the 10th of

12 June, 1999.

13 Q. So you yourself took the documents from the drawer? It was not

14 brought to you by anybody else; it was yourself who found them there?

15 A. There was one document about the number of the soldiers; that was

16 found in a floppy disk and it was brought to my office to print out. That

17 document was brought to me, that floppy was brought to me; the other

18 documents I found myself.

19 Q. Have you -- have you changed anything in those documents?

20 A. No.

21 Q. And from the time that you collected them and -- to the time when

22 you gave them to the Office of the Prosecutor, did you have them in your

23 custody all the time?

24 A. Yes, I kept them in my custody, except the document where you can

25 find the telephone number of -- my telephone, my brother's telephone

1 number, that was found on a calendar, and that is in my handwriting. The

2 original is at home.

3 Q. And then when you were interviewed by the Office of the

4 Prosecutor, you handed these documents over to the investigator who

5 interviewed you?

6 A. Yes. The investigator saw the original and took the photocopies.

7 Q. Okay. I'd like to ask you some questions about some of the

8 documents.

9 MR. MARCUSSEN: And I think if we could get P778 on the screen,

10 please. There we are.

11 Q. Could I ask you to read the title of this document. I believe it

12 says: "The Government of Serbia," and so on, the part that's in the

13 middle.

14 A. Yes. This is in Serbian. If you would like me to translate them,

15 it's addressed to the Government of Serbia, and the operational body of

16 the Republic of Serbia for Kosovo and Metohija. This was addressed to the

17 Suhareke branch on the 28th of March, 1991. The number is 35.

18 Q. Thank you.

19 MR. MARCUSSEN: And if we can scroll a bit further down on the

20 document, please, a bit further down. That was -- a bit up so we can see

21 number 1 being Halit Berisha and then the remainder of the names if you

22 could do that. Just go a little bit up. Okay. Thank you.

23 Q. Now, Mr. Berisha, you see here -- I understand this is a document

24 for the proposal of the replacement of a number of people in the municipal

25 authorities of Suva Reka and we see now on the screen a list of people

1 beginning with your name and listing eight people. Now, my question is:

2 The people listed here, are they -- are they Albanian or Serbian?

3 A. The people listed here are Albanian, and there are two others who

4 are listed as secretaries of the secretariat, but they were secretaries of

5 the people's defence. But they were not removed. The request referred

6 only to the Albanian workers, and all the names listed from 1 to 8, they

7 were all dismissed.

8 Q. And then we can see at the bottom of the page Dr. Bobek

9 Vuksanovic?

10 A. Yes.

11 Q. What ethnicity was he, Serb or Albanian?

12 A. Bobek Vuksanovic is the son of Ymer Shetra who was Albanian and

13 his mother is Serbian. He's an illegitimate child. His parents were not

14 married. He was born outside the wedlock.

15 Q. Was he considered by people in Suva Reka as being Serb or Albanian

16 or neither or?

17 A. He was regarded as a Serbian.

18 MR. MARCUSSEN: Could we go to the second page of this document,

19 please.

20 THE WITNESS: [Interpretation] He bears the last name of his

21 mother.

22 MR. MARCUSSEN:

23 Q. There are four -- there are five more people listed here in number

24 2 through 6.

25 A. They're all Serbs.

1 Q. Thank you.

2 JUDGE NOSWORTHY: Might I interrupt? As to the first page, I'd

3 like to ask the witness a question.

4 MR. MARCUSSEN: Of course, Your Honour.

5 JUDGE NOSWORTHY: Could the first page be shown again and could

6 the witness be asked to look at it.

7 MR. MARCUSSEN:

8 Q. Halit Berisha, do you see the --

9 JUDGE BONOMY: We don't have the -- we have it now. Thank you.

10 JUDGE NOSWORTHY: Yes. Is it being given to the witness in a

11 language which he understands?

12 MR. MARCUSSEN: It's the Serbian version. I believe he

13 understands Serbian.

14 JUDGE BONOMY: He understands.

15 JUDGE NOSWORTHY: Under Belgrade where it says as at a meeting,

16 there are some circumstances listed as the reason for dismissal. Do you

17 have anything to say concerning those circumstances? Did they in fact

18 exist or not? That's what I want to know from the witness.

19 MR. MARCUSSEN:

20 Q. Mr. Bosnian Serb, there is a reference to -- to --

21 A. The only reason was because I was Albanian.

22 Q. There's reference to something that is described in the English

23 translation as the well-known -- as well-known incidents, support for the

24 Kacanik constitution. Could you explain to the court what that was.

25 A. It is the Kacanik constitution. It's not about the discriminating

1 laws that were adopted by Serbia against the Albanian population. And

2 this was done on purpose so that we Albanians were dismissed and they took

3 up their positions in Suhareke. This was the only reason. It is true

4 that on the 7th of September -- it is true that on the 7th of September

5 the Kacanik constitution was adopted in 1990.

6 MR. MARCUSSEN: Would you like me to explore this further,

7 Your Honour?

8 JUDGE NOSWORTHY: If you're able to, subject to the leave of the

9 Presiding Judge.

10 JUDGE BONOMY: It's meaningless at the moment. It needs to be

11 explored.

12 MR. MARCUSSEN:

13 Q. Could you explain what that constitution was, please.

14 A. The constitution was adopted by the legitimate delegates of

15 Kosova, who before the 2nd of July, 1990, came out with the constitutional

16 declaration. And it was adopted in front of the parliament building

17 because they were prevented of going inside the parliament. So the

18 legitimate delegate of the Albanian people in Kosova adopted this

19 constitution.

20 Q. Who prevented them from going inside the parliament building?

21 A. The police, the Serbian police, on 2nd of July, 1990.

22 Q. Was the -- was the constitution that was adopted by the parliament

23 was that seen as unconstitutional --

24 [Trial Chamber confers]

25 MR. MARCUSSEN:

1 Q. Was the constitution that was adopted on that day, was that seen

2 as unconstitutional by the Serbian authorities?

3 A. The Serbian authorities did not recognise it and considered it

4 unconstitutional, but it was constitutional in the view of the Albanian

5 population.

6 JUDGE BONOMY: [Previous translation continues] ... Mr. Marcussen,

7 if you want to move on.

8 MR. MARCUSSEN: Yes, Your Honour.

9 Could we have the next exhibit up which is P779. And just for the

10 assistance of the registry staff, I think we'll try to go through the list

11 that I provided you now so you can prepare the list one. I think we can

12 stick to the list we provided at this stage.

13 Q. Could you read the title of this document, please, the underlined

14 part.

15 A. I will translate it. It's a request by legitimate representatives

16 of the Serbian people in the territory of Suhareke municipality. This is

17 the title of the document.

18 Q. And then would you read, please, or translate for me the first

19 sentence in the first paragraph.

20 A. "The weapons of the Territorial Defence which are stored in the

21 warehouse of the Territorial Defence in Djinovce village should

22 immediately be distributed to the Serbian people in the territory of

23 Suhareke municipality. The surplus, if any, should be stored in Balkan

24 premises and other ammunitions, such as hand-grenades, rifle grenades, and

25 mines to be distributed as well."

1 Q. Thank you. So this is a document for the distribution of weapons

2 only to the Serb population in Suva Reka. Is that your understanding of

3 the document?

4 A. Yes, to the Serbs.

5 Q. There is no dates, I believe, on this document. Could you help

6 us. When did you think -- when do you think approximately this document

7 dates from, if you can help us?

8 A. Approximately in late 1989 or beginning of 1990.

9 Q. And why do you think that is so? I don't know if you get -- got

10 my translation through. Why do you think it dates from around that time?

11 A. Because approximately around that time they began to arm the

12 Serbian population. We had only one road that divided us, our family,

13 from them, and we had knowledge that they were being armed.

14 Q. And so when you say "they," are -- is that --

15 A. I mean the Serbs.

16 MR. MARCUSSEN: If we could show Exhibit P780. And if we could

17 turn that clockwise.

18 Q. What is this, Mr. Berisha?

19 A. This is a list of persons, Serbs, of their villages, and at the

20 bottom of the list there is a pseudonym, Roma. It refers to Roma and

21 Koljaci, meaning slayers.

22 MR. MARCUSSEN: Could we scroll down to the bottom of the page and

23 out to the -- to the right part of the page.

24 THE WITNESS: [Interpretation] Yes.

25 MR. MARCUSSEN:

1 Q. -- this is what you are referring to?

2 A. These are the names of the villages in Suhareke municipality,

3 Mushtishte, Suhareke itself, Delani, Leshani, and in the end is listed

4 Ilic Srecko, the commander of this unit. He was born in Leshan.

5 Q. I think you already said it but the names on this list are they

6 Serb or Albanian?

7 A. All of them are Serbs.

8 MR. MARCUSSEN: Could we move on to the next one, 7 -- P781,

9 please. Now, again, this we need to turn anti-clockwise. Okay, we don't

10 need to zoom on this I think.

11 Q. Mr. Berisha, can you see the names on this page, please?

12 A. Yes, they're all Serbs.

13 Q. And are the names -- okay.

14 MR. MARCUSSEN: And then if we could go to Exhibit P784.

15 MR. ACKERMAN: Your Honour, excuse me just a moment, I don't know

16 what Mr. Marcussen's doing with P781, but he told us earlier he had no

17 intention of introducing 781 or 782 when I made an objection to them.

18 MR. MARCUSSEN: No, that is correct. And I wonder whether -- can

19 we go back -- no, I take that point and this was a mistake on my part, I

20 think. Could we go back and see 781, please.

21 JUDGE BONOMY: Well, it's easy, you don't need to see it. We

22 refused to admit it earlier, so it's refused admission --

23 MR. MARCUSSEN: Yeah, I'm sorry.

24 JUDGE BONOMY: We'll ignore the part of the transcript from 59,

25 1 --

1 MR. MARCUSSEN: No, I apologise to Mr. Ackerman.

2 JUDGE BONOMY: -- to 59, 6.

3 MR. MARCUSSEN: 784, please, if we could see that. If we can zoom

4 in on the actual text a bit on this one. We can leave it as it is there.

5 That's fine.

6 Q. What does the title -- what does the first three lines of this

7 document say after the number beginning K20 --

8 A. The civilian defence staff of the Suhareke municipality. All of

9 them are Serbs. And second is -- under 2 is Mushtishte it's a village in

10 Suhareke municipality.

11 Q. You say all the people on the list are Serbs. You had a chance to

12 review this list when we met today. Is that correct?

13 A. Under 7, Ndrec Lalaj, member of the civilian defence, so he was

14 Albanian by nationality but he was engaged in these units of the civilian

15 defence.

16 MR. MARCUSSEN: Okay. Then I think -- is it possible to zoom out

17 a little bit so we can see all the names on -- can we have something in

18 between?

19 Q. Now, of the names that you are see now on the monitor --

20 A. Yes.

21 Q. -- how come the person you just mentioned as being Albanian. Are

22 there any other Albanian names there?

23 A. No.

24 MR. MARCUSSEN: Could we go to the next page, please, of this

25 exhibit. And can we zoom in again on the text, if we can capture it all

1 that will be ...

2 Q. On this one, are the names --

3 A. No, there are no Albanians on this one; only Serbs.

4 MR. MARCUSSEN: And if we can do the next page of this exhibit and

5 do the same zooming exercise.

6 THE WITNESS: [Interpretation] On this one all of them are Serbs as

7 well.

8 MR. MARCUSSEN: I'd like to then go to Exhibit P785, please.

9 Q. Now, that is, as I understand it, a document from the Balkan

10 factory in Suva Reka and it's dated the 10th of April, 1992. We have the

11 translation, so I don't think we need to go through that, but it's about

12 distribution of weapons to employees at the factory. The question I have

13 for you, Mr. Berisha, is: To your knowledge in 1992, were the employees

14 at the factory, were they Serb or Albanian?

15 A. As of in or about 8 or 9 August, 1990, the Albanians were

16 dismissed and they were no longer working in the factory.

17 MR. MARCUSSEN: If we could now go to Exhibit P786, please.

18 Q. There's an awful lot of things crammed in on this page. I think

19 it's -- do you recognise this document from the documents that you gave us

20 to --

21 A. Yes, this is the Official Gazette. It's about the change of names

22 of schools bearing Albanian names.

23 Q. So by this decision the names of Albanian -- of schools in Suva

24 Reka municipality were changed from Albanian names to other names. Is

25 that correct?

1 A. Yes, that's correct.

2 MR. MARCUSSEN: Now I'd like to call up P787.

3 Q. There's a decision I believe beginning in the first column, and

4 that's a decision on the managerial organs of the cultural institute in

5 Suva Reka.

6 A. The cultural institutes, and it was named after Jovan Jovanovic

7 Zmaj and all the members of this group were Serbs.

8 Q. Thank you?

9 MR. MARCUSSEN: Then we will go to P788, please.

10 Q. This is a document for the setting up of -- it's about the

11 municipality counsel and verification of the mandate of councillors. And

12 there's a list of 27 councillors that have been verified. Are they Serb

13 or Albanian, to your knowledge?

14 MR. MARCUSSEN: If we can zoom in on the names if you need to --

15 THE WITNESS: [Interpretation] Out of 27 members of the Assembly

16 that was established at that time, all of them were Serbs, although the

17 proportion ratio in the population was 95 per cent Albanian and 5 per cent

18 Serbs and others.

19 MR. MARCUSSEN: I'd like now to --

20 JUDGE BONOMY: The previous one which was P787, which number is it

21 on the list in the statement -- page 5 of the English version of the

22 statement?

23 MR. MARCUSSEN: It is also -- it's number 8. There are a number

24 of decisions under 8, but they have been given two separate exhibit

25 numbers here.

1 JUDGE BONOMY: Thank you.

2 MR. MARCUSSEN: If we could now move to Exhibit P789. If we can

3 zoom in on the bottom left quarter of this page, please. A little out

4 from here, but otherwise we are fine. What I think we can do with this --

5 Q. Halit Berisha, we are seeing here I think a list of electoral

6 districts in the municipality of Suva Reka.

7 A. Yes, it is a list of electoral units composed by them. For

8 example, they divided Suva Reka into five electoral units and they did the

9 same with the village of Mushtishte, and, below there, seven, eight, nine,

10 ten.

11 Q. You say "they," who are you referring to?

12 A. The Serbs who were in power at that time, and they divided these

13 electoral units not on the basis of number of inhabitants but only to be

14 able to create that list we just saw with this 27 candidates on it. For

15 example, here at number 6 you have Grejkovce, Dubravce, Selograzde,

16 Stavrovo. In this area more than 5.000 inhabitants --

17 Q. Can I stop you just so we are clear about what this evidence

18 shows. So under number 6 there is a list of villages in Suva Reka

19 municipality. Is that correct?

20 A. Yes.

21 Q. And you are saying to the best of your knowledge in that -- in

22 those villages together there were more than 5.000 inhabitants?

23 A. Approximately, in all the villages.

24 Q. Together. Thank you. Yes. And if we now look, for example, at

25 the electoral districts number 12 and 13, Bujani 1 and 2. How many people

1 lived in Bujani?

2 A. The village of Dvorane had approximately 300 inhabitants and it

3 was divided into two zones.

4 Q. Were -- in Dvorane, were the inhabitants mainly Serb or Albanian?

5 A. Majority was Serb. Only some families were Albanian.

6 Q. Okay. And in the -- in the -- in the seven villages listed under

7 item 6, electorate district 6, were the inhabitants mainly Albanian or

8 Serb?

9 A. Only Albanians.

10 Q. And what did you say -- why do you think the electoral districts

11 were made this way?

12 A. Only to be able to create the list of 27 candidates for the

13 municipality of Suhareke.

14 JUDGE BONOMY: What's the date of that -- what's the --

15 Mr. Zecevic.

16 MR. ZECEVIC: I would -- this is exactly the type of the evidence

17 what -- what we were objecting about. And this will definitely take us

18 into 2009 with the --

19 JUDGE BONOMY: Well, I'm very surprised that the Prosecution have

20 time to spend on this, but that's their choice at the moment.

21 MR. ZECEVIC: And my learned colleague has elicited the answer

22 from the witness which is really for an expert witness. I don't see how

23 the witness can answer such a question, that this witness can answer.

24 Thank you.

25 JUDGE BONOMY: Anyway, I would like to know the date of this

1 document.

2 MR. MARCUSSEN: That I can probably assist from the translation.

3 Can we look up at the top of this page, please, out in the

4 right-hand corner. We'll need a bit further out to the right. We don't

5 seem to --

6 Q. Mr. Berisha --

7 A. I cannot see it very clearly. It's 29th of April, as far as I can

8 see.

9 Q. Do you know what year it is?

10 A. I cannot see the year.

11 Q. Do you know from -- do you happen to know what year this was?

12 A. It should be 1992.

13 MR. MARCUSSEN: And maybe if we scroll down on this page. In the

14 same view we have -- if we stop here.

15 Q. Am I correct that out in the right-hand column, just about in the

16 middle, we have reference to a decision taken on the 29th of April,

17 2000 -- 1992, Mr. Berisha?

18 A. Yes, 1992.

19 Q. I'd like to -- we have two more exhibits to go. I just need to

20 pass a message to my -- oh, no, sorry.

21 MR. MARCUSSEN: Could we call up P790, please.

22 Q. Now, this is a decision of the Red Cross in Kosovo from 24 October

23 1991. It's about the replacement of the secretary of the Red Cross

24 Committee.

25 MR. MARCUSSEN: Can we zoom in so we can see paragraphs 1 and 2 of

1 this.

2 THE WITNESS: [Interpretation] Yes, Ahmed Krasniqi was dismissed

3 and Ilic Krsto was appointed.

4 MR. MARCUSSEN:

5 Q. Krasniqi, was he --

6 A. Krasniqi was Albanian and the latter is Serbian.

7 Q. Thank you. Now, the last document I'd like us to go to is P794.

8 It is a document from the 11th of May, 1999, about the creation of a

9 committee to assess war damage.

10 MR. MARCUSSEN: If we can scroll down a bit so we can see the

11 names of members of the committee listed in -- yeah, I think this is a

12 fine view.

13 Q. The number of members of the committee listed there, Mr. Berisha,

14 are they Serb or Albanian?

15 A. They're all Serbs.

16 Q. Thank you.

17 MR. MARCUSSEN: Now, Your Honours, the Prosecution would like to

18 tender the following exhibits that we have been discussing today. We've

19 already been through some of them, but we'd like to have P133, P1807 --

20 JUDGE BONOMY: Well, what -- hold on until I find these items.

21 P133 --

22 MR. MARCUSSEN: I believe that was the -- that was a picture with

23 the track-suit identified by --

24 JUDGE BONOMY: There's no issue over that. Yes, on you go.

25 MR. MARCUSSEN: P1807 is the picture --

1 JUDGE BONOMY: There's no issue over that.

2 MR. MARCUSSEN: And then the exhibits that I've been going through

3 here in the last bits of the testimony.

4 JUDGE BONOMY: Yeah.

5 MR. MARCUSSEN: And they are just to mention the numbers and we

6 will --

7 JUDGE BONOMY: Well, we've got a note of the numbers, so you don't

8 need to go through them again.

9 MR. MARCUSSEN: Okay.

10 JUDGE BONOMY: But we need to hear what's to be said against that,

11 since objection was taken.

12 Now, have you any further questions?

13 MR. MARCUSSEN: I don't have any further questions. It's -- just

14 to clarify, my case manager asked me to make sure that we have the --

15 [Prosecution counsel confer]

16 MR. MARCUSSEN: Well, my case manager -- maybe we might as well

17 clarify this. Would Your Honours like us to replace P2325, that is the

18 transcripts where we have agreed that a certain portion should be stricken

19 or can we leave the record as it is?

20 JUDGE BONOMY: You can leave it as it is.

21 MR. MARCUSSEN: Your Honours, I have no further questions at this

22 stage. In re-direct maybe.

23 JUDGE BONOMY: Thank you.

24 Mr. Berisha, one thing I would like to be clear about before we go

25 any further. You told us that you were advised in September of this year

1 that your brother, Jashar Berisha's body had been found in a mass grave at

2 Batajnica. You also told us that the item of clothing had been recovered

3 from a mass grave between Prizren and Suva Reka at a place called Kroj i

4 Popit.

5 THE WITNESS: [Interpretation] The massacre of the 26th of March of

6 1999 occurred from 12.00 a.m. -- p.m. to 2.30 p.m. --

7 JUDGE BONOMY: I haven't asked you a question yet. Would you just

8 hold on, please. When was it that the item of clothing was recovered?

9 THE WITNESS: [Interpretation] The clothing was found sometime in

10 July 1999 when we returned from Albania.

11 JUDGE BONOMY: And you -- did you personally find it in the grave?

12 THE WITNESS: [Interpretation] Yes. Myself, my wife, and Hyseni

13 Berisha.

14 JUDGE BONOMY: Thank you.

15 Mr. O'Sullivan.

16 MR. O'SULLIVAN: Your Honour, we'll follow the --

17 MR. STAMP: I'm wondering if I may just intervene here to make a

18 request, and perhaps Mr. O'Sullivan could assist us here. We have a

19 witness here to follow. He arrived I am told around midnight or after

20 midnight and he has complained about being very exhausted. I don't think,

21 but I want to confirm, that there's no need for him to remain here and

22 perhaps come into court just for a few minutes completely nackered. I

23 don't know if perhaps you could release him to return tomorrow.

24 JUDGE BONOMY: I'm not in a position to say how long the

25 cross-examination will be.

1 Can you, Mr. O'Sullivan?

2 MR. O'SULLIVAN: No, I can't say, Your Honour, but I don't know.

3 JUDGE BONOMY: Well, tell me the order first of all.

4 MR. O'SULLIVAN: Well, we'll follow the indictment, and I have no

5 questions.

6 JUDGE BONOMY: Well, Mr. Fila. Can you give me --

7 MR. FILA: [Interpretation] I do have some questions, Your Honour,

8 very few, but I would just like to clarify matters rather than ask

9 questions.

10 JUDGE BONOMY: Well, before you embark on that, who has a

11 substantial number of questions for this witness? Well, I think the

12 witness that you have in waiting better wait for the moment, Mr. Stamp.

13 Carry on, Mr. Fila.

14 Cross-examination by Mr. Fila:

15 Q. [Interpretation] Mr. Berisha, I am Toma Fila and I am Defence

16 counsel for Nikola Sainovic. I will ask you very briefly about certain

17 matters just to clarify them. There are some things I find sort of

18 strange. If a few days ago -- in September of this year you received

19 information about your brother in Batajnica, did you take over your

20 brother's body? As far as I know the identification was carried out a

21 long time ago. It's a bit strange that it happened just now, isn't it?

22 The question is: Did you take over your brother's body?

23 A. No, he's in the morgue in Pristina because we requested that the

24 whole of the victims of the Berisha family be together for a funeral, for

25 a proper funeral. We're still expecting 31 people, 31 bodies to come. I

1 have still not received the body.

2 Q. I'm just asking you to clarify this because as far as I know the

3 identification was carried out a long time ago. Please don't

4 misunderstand me. I'm just asking you this to clarify matters.

5 Further on, P0789 that the Prosecution dealt with, you talked

6 about electoral units that Suva Reka was broken up into several subunits,

7 but you have this same decision on the appointment of the municipal

8 electoral commission, the assemblymen of the municipality of Suva Reka.

9 Since this is a document that you brought in, and as far as I know you

10 know it by heart, as far as I can see it's Albanians on the commission;

11 right?

12 A. I don't have this document before me. They were appointed by the

13 Serbs, by the Serb authorities. They were not part of the commission.

14 JUDGE BONOMY: [Previous translation continues] ...

15 MR. FILA: [Interpretation] Please have it returned. No problem.

16 Could we have it back on your screens P00789, an exhibit that you showed,

17 it was the one but last.

18 THE INTERPRETER: Interpreter's note, could all microphones please

19 be switched off except for the speaker's. Thank you.

20 MR. FILA: [Interpretation] I have to object, this document P00789.

21 It's the one that's here right now. Now, could we have a look at the

22 right-hand side of this document. That's it, isn't it? Could the

23 right-hand side -- the bottom, rather, be enlarged, on the right-hand side

24 but the bottom. Yes. Yes, a bit more, a bit more. Yes. Right.

25 THE WITNESS: [Previous translation continues] ...

1 MR. FILA: [Interpretation]

2 Q. Could you please read this. Miodrag Plazenic [phoen] is a Serb,

3 but what about Avdi Gashi, Judge Avdi Gashi. What is he by ethnicity,

4 Albanian or Serb?

5 A. Avdi Gashi and Rustem Hasani did not take part in the commission.

6 Their names are there but I know for sure that they did not park -- take

7 part.

8 Q. I'm just asking you what it says in this decision, that they are

9 being appointed members of the commission, and then further on you have

10 Lalaj Ndrec, is he also an Albanian?

11 A. I'm saying that they are Albanian, but they did not take part in

12 the workings of the commission. They resigned. They resigned.

13 Q. I didn't ask you about that. They were appointed members of the

14 commission --

15 JUDGE BONOMY: [Microphone not activated]

16 Would you slow down for a moment and observe some break between

17 your question and the witness's answer so that there's time for the

18 translation to be completed. Thank you.

19 MR. FILA: [Interpretation]

20 Q. Now I would like to take you back to your statement, paragraph 2.

21 You said that you were appointed on the 24th of May, 1989, as president

22 for Suva Reka. Who actually organised the elections where you were

23 elected?

24 A. The election occurred earlier. I was made mayor after the

25 elections in the commune of Suva Reka. The Assembly of Kosovo organised

1 the election.

2 Q. Who organised the elections? That is my question. Then you said

3 on the 5th of April, 1991, five Serbs came in, three of which were from

4 the secret service and two from the Serbian Assembly. What Serbian

5 Assembly is this that you're referring to?

6 A. A decision is missing here. Of the Serbian Assembly because this

7 is a request of the socialist party and this is a decision of the Serbian

8 Assembly to dismiss people. I have this decision here. It was a decision

9 of the Serbian Assembly.

10 JUDGE BONOMY: The question you're being asked is: Which Serbian

11 Assembly? Just concentrate -- can you tell us which --

12 MR. FILA: [Interpretation]

13 Q. Just give me short answers and then we'll be done quickly.

14 JUDGE BONOMY: [Previous translation continues] ... Mr. Fila a

15 moment.

16 Mr. Berisha, just look at me, please. Mr. Berisha, look at me.

17 Which Serbian Assembly?

18 THE WITNESS: [Interpretation] The Assembly of Serbia, the Assembly

19 of the Republic of Serbia. One document is missing in this bunch of

20 documents, and I have it here.

21 JUDGE BONOMY: Do you understand the answers --

22 MR. FILA: [Interpretation] Your Honour, I think that we are not

23 understanding each other. I understand the answer but that's not what I

24 asked.

25 Q. Are you claiming that Boban Vuksanovic was a member of the Serbian

1 Assembly of -- the Assembly of Serbia in Belgrade? Bobek Vuksanovic?

2 A. The Assembly of Serbia.

3 Q. Do you have your own statement? Could you please look at

4 paragraph 2 in your own statement? Yes. And you will see here that five

5 people came, three from state security, two Serbs from the Serb Assembly.

6 What Serb Assembly were you referring to? That's my question, Bobek and

7 whatever.

8 MR. MARCUSSEN: If I may. It's being suggested that the witness

9 is confused because he's referring to a Serb Assembly in Belgrade I think.

10 The statement is quite clear. It says, "Vuksanovic was a member of -- was

11 the secretary of the Serbian Assembly in Suva Reka." That is what it's

12 saying in the English version of the statement.

13 JUDGE BONOMY: That's not the question that's being asked. The

14 question relates to a person called Boban Vuksanovic and what Mr. Fila

15 wants to know which Serb Assembly it is said he is from. Now, is there

16 anything wrong with that question?

17 Hold on, hold on, hold on. The problem, Mr. Fila, with your

18 involvement throughout this trial is that you get -- you want to speak

19 before the answer had been completed. I understand your anxiety to make

20 progress; in fact, I commend it. But it can in the end of the day it can

21 slow things down. We have a Scottish expression, the more hurry, the less

22 speed. So perhaps if we just take this calmly we'll get there a bit more

23 quickly.

24 Mr. Marcussen.

25 MR. MARCUSSEN: The witness has said that the decision was issued

1 by the Serbian Assembly of the Republic of Serbia. The statement says

2 that Vuksanovic was the secretary of the Serbian Assembly of Suva Reka.

3 Now --

4 JUDGE BONOMY: No, the statement says that Borisavljevic was the

5 secretary of the Serb Assembly in Suva Reka. We're not asking about him.

6 We're earlier in the statement. Okay? So let Mr. Fila conduct his own

7 cross-examination.

8 Carry on, please, Mr. Fila, to clarify this.

9 MR. FILA: [Interpretation] We understand each other,

10 Mr. Prosecutor. My only question to the witness is: What Assembly is he

11 talking about, the one in Belgrade or the one in Suva Reka. That's it.

12 Q. Am I perfectly clear now. Boban Vuksanovic, nicknamed Bobek, you

13 said that he was from the Serb Assembly and that this other one was the

14 secretary of the Serb Assembly. That's what it says here. Please read

15 your statement.

16 A. Please, this is a decision of the Assembly of the Republic of

17 Serbia which dismisses people like us and appoints Boban Vuksanovic as

18 head of the Executive Council of the commune of Suhareke, municipality of

19 Suhareke, and the other person as secretary in Suhareke. This is a

20 decision of the Assembly of the Republic of Serbia dated 1991.

21 Q. What you are saying now makes sense, and I believe that was the

22 case. But the point is that your statement said otherwise. But never

23 mind. It says that they were members of some Serb Assembly in Suva Reka.

24 I didn't understand that. What kind of Serb Assembly was this in Suva

25 Reka? You see, that's how we read it from the statement. Well, now it's

1 clear.

2 Then you said that there were three people from state security,

3 but you referred to yet a third Serb, Stanislav Andjelkovic. In paragraph

4 2 of your statement -- all of this is paragraph 2 of your statement. Just

5 have a look. You say there was another person by the name of Stanislav

6 Andjelkovic. Was he with these five people? I don't understand. I mean,

7 in what context are you referring to him?

8 A. On the 5th of April, 1991, five people came. Two were from the

9 Assembly of Serbia and the other three were from the state security. I

10 was told they were from the security. They were Bobek -- Boban

11 Vuksanovic, Tomislav Borisavljevic. They came to my office and they gave

12 me this decision and I left the office.

13 Q. I understand, but in your next sentence you say that Stanislav

14 Andjelkovic was there, too?

15 A. Yes, he came at the same time, together with them.

16 Q. So it's six people altogether; right?

17 A. Five, add two -- eight --

18 Q. Who are the eight people?

19 A. I explained. So the two and the three, it's five of them. Bobek

20 and Borisavljevic is seven and then Andjelkovic, that makes eight.

21 Q. No way. All right. Let the Court decide.

22 Now, the Kacanik constitution that was adopted, did it proclaim

23 the independence of Kosovo or something else?

24 A. Yes.

25 Q. Is it logical for you to expect the Republic of Serbia to accept

1 some constitution that declares independence on its very own territory?

2 What do you think? You're an intellectual. Tell us.

3 A. Yes, but I didn't want to apply the discriminatory laws that the

4 Assembly of the Republic of Serbia passed against the Albanian people.

5 They stopped the financing of schools and everything else.

6 Q. Let us conclude. You supported this constitution of Kacanik,

7 right?

8 A. Absolutely.

9 Q. Let's just clarify one more thing and then I'm not going to bother

10 you any further. At that moment Suva Reka is part of Kosovo, Kosovo is

11 part of Serbia in 1990. What about Serbia, is Serbia part of the SFRY?

12 Yes or no.

13 A. Yes.

14 Q. The SFRY has a Presidency, right? Do you remember that?

15 A. Yes, they had a Presidency.

16 Q. Presidency of the SFRY. Did Kosovo have its representative on the

17 Presidency of the SFRY, yes or no? In the Presidency that governed the

18 country, yes or no?

19 A. Yes, there was a representative, but of course everybody knows how

20 one was dismissed and they replaced him with another.

21 Q. Believe me, I don't remember now myself, but never mind. I don't

22 remember. Thank you very much. That would be all.

23 A. Riza Sapunxhiu was replaced and it is known why.

24 JUDGE BONOMY: Thank you, Mr. Fila.

25 Mr. Sepenuk, do you have questions for the witness?

1 MR. SEPENUK: [Microphone not activated]

2 THE INTERPRETER: Microphone, please.

3 JUDGE BONOMY: Mr. Ackerman, do you have questions for the

4 witness?

5 MR. ACKERMAN: I do. Do you want me to start now?

6 JUDGE BONOMY: No, no, I want to know how long you will be.

7 MR. ACKERMAN: 10 or 15 minutes maybe.

8 JUDGE BONOMY: That's fine, thank you.

9 Mr. Bakrac.

10 MR. BAKRAC: [Interpretation] Your Honour, I have four or five

11 questions but I assume that some of that will have been dealt with by

12 Mr. Ackerman. So it's not very much, but perhaps it's even going to be

13 less later --

14 JUDGE BONOMY: Mr. Lukic?

15 MR. LUKIC: We do have some questions.

16 JUDGE BONOMY: That sounds much more menacing.

17 All right. Thank you. I think what we shall do you is allow you

18 to release your witness.

19 Mr. Berisha, we'll have a break now, so could you leave the

20 courtroom and you'll return in half an hour. And the court will resume at

21 five past 6.00.

22 --- Recess taken at 5.36 p.m.

23 [The witness stands down]

24 --- On resuming at 6.06 p.m.

25 JUDGE BONOMY: Mr. Ackerman.

1 MR. ACKERMAN: Thank you, Your Honour

2 [The witness entered court]

3 Cross-examination by Mr. Ackerman:

4 Q. Mr. Berisha, I'm going to ask you a few questions and make them

5 easy that you can understand and that you can give relatively short

6 answers to I hope. In paragraph 4 of your August 2001 statement you talk

7 about people who were present on the 24th of March, 1999, a large movement

8 of Serb forces you called it. And you said this: "Some wore black

9 clothes with red, camouflage colours, in fact all different-coloured

10 bandannas on their heads. Others wore blue camouflage police uniforms and

11 other wearing green camouflage uniforms. They were patrolling the streets

12 and they were joined by local Serbs in police and military uniforms."

13 Now, those local Serbs in police and military uniforms, those

14 were -- those were local Serb civilians, were they?

15 A. No. They were wearing military uniforms. Part of the local

16 people, our neighbours, were wearing police uniforms in blue pattern,

17 camouflage, and part of them in green pattern. Those who were wearing

18 green pattern uniforms, they were with the army and the others with the

19 police. And another smaller group that we saw in the streets, they had

20 black uniforms and they had bandannas on their heads, and they were moving

21 in a Pinzgauer in the city.

22 Q. Well, I tried to ask the question, and I guess I didn't do a very

23 good job. I'm only referring to the people that you referred to as "local

24 Serbs in police and military uniforms." Now, those local Serbs in police

25 and military uniforms, those were civilians, weren't they?

1 A. No, not civilians. They were wearing uniforms. They were members

2 of Trajkovic, Krstic, and Jovanovic and Nojic families, and they used to

3 be our neighbours. We knew them by their names and last names. Trajkovic

4 Sava, Jovanovic Zoran. I just mentioned a few of the names.

5 Q. Okay. We're going to come back to that issue in a few moments,

6 but in paragraph 8 you're talking about 26 March 1999 and you say at 5.30

7 p.m. that afternoon you went back to a relative's home. There were two

8 homes side by side, the men went to one, the women went to the other.

9 Then you say this: "The men kept watch on the women's house so that they

10 would be safe."

11 Were these men armed that were keeping watch on this women's

12 house?

13 A. They are members of our family. We are 200 people in our family,

14 men and women, and my family's --

15 Q. [Previous translation continues] ... what I asked you. I want

16 you to answer the question I asked you. These men keeping watch, were

17 they armed?

18 A. Among these men was myself as well. These were civilians without

19 uniforms, without weapons.

20 Q. How was it they were going to keep the women safe if they had no

21 weapons? You said they were watching so that the women would be safe.

22 How were they going to keep them safe without weapons?

23 A. We were in two houses that belonged to my cousins. In one of the

24 houses were the women and children and in the other the men. We were

25 about 200, as I said, and we could not stay in one house all together. We

1 were not guarding them in any way, but we were nearby.

2 Q. What was it you meant when you said in your statement: "The men

3 kept watch on the women's house so that they would be safe"? What did you

4 mean by saying that?

5 A. We were in two houses because we were afraid that the Serbian

6 police and army who were armed would commit a massacre, similar to that of

7 Berisha family. We were scared that they might intervene with weapons,

8 and that's why we were staying in two houses. My neighbourhood and my

9 family has a total of 12 or 13 houses, not only two that I mentioned.

10 Q. I'm going to give up on that question.

11 When you first started your testimony today, Mr. Marcussen at page

12 31, line 13, was asking you about the last couple of days and have you had

13 a chance to go over your statement in Albanian and to decide if there

14 should be any corrections. And you said that there were some very minor

15 corrections. You told us what they were. And then he asked you if, after

16 that, was everything correct, and you said at line 32, 14: "Yes,

17 everything is correct."

18 So that when you decided after looking at this for the last two

19 days that everything was correct, one of the things that was correct was

20 when you said in paragraph 10: "Around 6.00 p.m. that evening a local

21 Serb neighbour who was a policeman, I don't remember his name, came to our

22 home and said: 'You must go to Albania. Paramilitaries will come and

23 kill you.'"

24 That was one of the things in that statement that you told us

25 today was correct; right?

1 A. It's about the 28th of March, 1999, when Nojic Djura came, he was

2 wearing a military uniform. I know him from his childhood and he said to

3 me: "You have to get ready to go to Albania because others will come."

4 This is what he said. And they will slaughter you, they will cut your

5 throats. So get ready as fast as you can and leave. I did not go to

6 Prizren. Other members of the family went there. I went to Savrove,

7 myself and my family --

8 Q. [Previous translation continues] ... not long ago, within the last

9 hour and a half, two hours, maybe two and a half hours, you said to this

10 Chamber, other than some small corrections you made, that everything in my

11 statement is correct. When you gave this statement that you signed the

12 page of you put quotes around what the policeman said. There are quote

13 marks. You were saying: These are his exact words, if that's what quote

14 marks mean. "You must go to Albania. Paramilitaries will come and kill

15 you."

16 Now, you told us today that that was correct; now you're telling

17 us it's not. So is that right? So you really weren't quoting him when

18 you gave this quote to the Prosecutor back in 2001, 2002?

19 A. I don't know how it was written down, but this were his words:

20 You should get ready as soon as you can and go to Albania because they

21 will slaughter you. These are his words, not mine.

22 Q. You do too know how it was written then because you just told us

23 today that you had spent the last two days with an opportunity to look

24 over that statement carefully and see if there were any corrections. So

25 don't tell us you don't know what it said; you do know what it said and

1 you didn't correct it, did you?

2 A. It is possible that the inverted commas are missing and I have

3 made corrections to the dates. As for the inverted commas, maybe I have

4 read it -- the statement, that is, without noticing if the words were in

5 the inverted commas or not.

6 JUDGE BONOMY: This is not meant to be a pre-judgement of the

7 accurate version of this evidence, but what is it, Mr. Ackerman, that the

8 witness has said in these exchanges that you do not accept?

9 MR. ACKERMAN: Your Honour, I'm actually going there. I just want

10 to try to --

11 JUDGE BONOMY: The only expression he's used to far is "they."

12 MR. ACKERMAN: I know that.

13 JUDGE BONOMY: Sorry.

14 MR. ACKERMAN: It's going to get -- that was one of the arguments

15 we had this morning about the Milosevic transcript -- not this morning but

16 earlier this afternoon.

17 Q. Do you remember testifying in the Milosevic case, do you remember

18 that?

19 A. Yes. It was on either 4th or 5th of July, 2002.

20 Q. Yeah, the part I'm going to refer to was on the 4th of July, 2002,

21 and when you testified in the Milosevic case you took -- you took the

22 oath, you stated a solemn declaration, just like you did here today, to

23 tell the truth, didn't you?

24 A. Yes.

25 Q. And did you tell the truth in the Milosevic case?

1 A. Absolutely, yes.

2 Q. On page 7462 of the transcript of that case that has been admitted

3 as an exhibit in this case, you said this regarding what Nojic Djura said

4 to you. You said there that he said --

5 A. Djura, yes.

6 Q. And again it's in quotes. You say there that he said this, you

7 trying to quote him directly: "You have to make -- get yourselves ready

8 within 15 minutes because they might come. The army and the police will

9 come and are going to kill you all. So get ready and go to Albania."

10 Now, was that the truth when you said that in Milosevic?

11 A. No. What I said is the following: You have to get ready in 15

12 minutes on the 1st of May -- 21st of May, 1999. I didn't say then for 15

13 minutes, in 15 minutes, that is.

14 Q. So what's -- what's in the Milosevic transcript is not true. Did

15 you say: "The army and the police will come and are going to kill you

16 all"? Did you say that that's what he said?

17 A. He said that, that the army and others will come and kill you. He

18 said that, Nojic Djura, and he added that we should get ready as soon as

19 possible and leave. But the time was not mentioned, except for the 21st

20 of May.

21 Q. Then when you get over just one page more, on page 7463, in the

22 Milosevic case, Judge Kwon is asking you questions at this point. And

23 Judge Kwon asks you about what this police officer said and he said: "Was

24 this a threat or was it some kind of friendly advice about being concerned

25 with the safety of your family?"

1 Your answer then was -- I mean just probably seconds after your

2 first answer: "No, he said literally," and again we're going into quotes,

3 you're quoting what this police officer said, "'Go to Albania because

4 others are going to come.' We didn't ask who the others would be."

5 And then you say he said: "'They're going to slit your throats.'

6 Those were his words."

7 And that's what you told Judge Kwon, wasn't it?

8 A. That's correct.

9 JUDGE BONOMY: Mr. Marcussen.

10 MR. MARCUSSEN: Just -- Mr. Ackerman, if the reference is to line

11 8 then it looks like it's actually a question from -- a question from Mr.

12 Milosevic that's in quotes saying: "Go to Albania because others will

13 come," and then the witness answered: "Yes." It's not the witness saying

14 --

15 MR. ACKERMAN: Then the question is, is by Judge Kwon beginning on

16 page 7462 at line 24. The witness answers at the top of 7463 with the

17 exact words that I just quoted, Mr. Marcussen. If you'll look you'll see

18 that. Judge Kwon then says: "Thank you" when he gets that answer.

19 Do you dispute that?

20 MR. MARCUSSEN: I don't dispute that. I don't think the witness

21 put quotation marks on the transcript; I think that's done by others. But

22 that's a different point. We'll get to it.

23 MR. ACKERMAN: I agree, the witness doesn't get to put the

24 quotation marks in. His language was: "He said literally ..." That

25 generally means you're quoting the witness, doesn't it?

1 JUDGE BONOMY: We'll have the submissions in a couple of years.

2 Let's carry on with the questions.

3 MR. ACKERMAN:

4 Q. This person Bobek Vuksanovic that you've talked about at page 7447

5 in the Milosevic transcript, you said about him, among other things he was

6 killed, but you said that: "He was the commander of the Crisis Staff in

7 Suhareke municipality." And at page 7447, 11, you say: "I know, as I

8 have been told, that he was wearing a camouflage military uniform when he

9 was killed."

10 Is that correct?

11 A. That's correct. He was killed on the 14th of April, 1999.

12 Q. And it was correct that he was wearing a -- a camouflage military

13 uniform at the time?

14 A. Yes, he was always wearing a camouflage uniform.

15 Q. Now, you talked then on page 7451 about where you lived and Serbs

16 that lived near you. You said: "My house looks over a lane." This is

17 7451, line 8. "And in the lower part of this lane there are local Serbs

18 living who were our neighbours until recently and they were all armed.

19 The Trajkovic family, the Svetkovic family, the Jovanovic family, they

20 were all of them, 16 years and above, they were all armed and they were

21 either all armed or with police uniform, camouflage police uniform and

22 some of them had military uniforms and some of them even had what we call

23 Chetnik caps with the symbols of the old monarchy."

24 Now, these were Serb civilians that lived in your neighbourhood

25 that wound up wearing uniforms and carrying weapons, weren't they?

1 A. No, they were uniformed and a lane, a road, divides our family and

2 the location where the Serbs. We saw them wearing uniforms and carrying

3 weapons even before the 24th of March. Trajkovic, Sava, Trajkovic

4 Milovan, and other families that I mentioned. We used to live together,

5 and I know every one of them. And not on one occasion, but we've seen

6 them on many occasions wearing the uniforms. Some in green military

7 pattern, and some in blue police pattern.

8 Q. [Previous translation continues] ... arguing with you. I'm not

9 contesting whether or not they were wearing uniforms. That's not the

10 issue at all. The question I'm asking you: Having observed them wearing

11 uniforms and being armed, wearing police uniforms and military uniforms,

12 my only question is: These are civilians who lived in your neighbourhood

13 that were wearing these uniforms, weren't they? These were not members of

14 the police force or members of the army; these were civilians who lived in

15 your neighbourhood, weren't they?

16 A. A person wearing a uniform is not a civilian. A person wearing

17 civilian clothes is different to one wearing a uniform. A person who

18 wears a uniform, we call him a soldier; and a person who is wearing

19 civilian clothes, we call him a civilian. So that person who is wearing a

20 uniform is subordinate to the person who issued him with a uniform and a

21 weapon; and a civilian does not report to anyone.

22 Q. And --

23 JUDGE BONOMY: Mr. Berisha, one of the things you said, I'll just

24 quote it to you was that your house looks over a lane, "and in the lower

25 part of this lane there are local Serbs living who were our neighbours

1 until recently."

2 When you -- when they were your neighbours, did they wear civilian

3 clothes?

4 THE WITNESS: [Interpretation] Up until 1998 they were wearing

5 civilian clothes. In the meantime, after 1998, now I don't know who got

6 the uniforms when, but it happened that we saw them on the roads in

7 uniforms and wearing -- carrying weapons. So after 1998, those who were

8 older than 18 had a uniform.

9 JUDGE BONOMY: Now --

10 THE WITNESS: [Interpretation] And Trajkovic Sava had this cap with

11 a cockade, with the sign of the monarchy.

12 JUDGE BONOMY: Does "after 1998" mean in 1999?

13 THE WITNESS: [Interpretation] Even in 1998 there were people who

14 were wearing uniforms, and in 1999 all of them were wearing uniforms and

15 were armed.

16 JUDGE BONOMY: Roughly when did you first observe this?

17 THE WITNESS: [Interpretation] When we would go out in the

18 roads --

19 JUDGE BONOMY: Roughly when did you observe this? When in 1998?

20 THE WITNESS: [Interpretation] 1998, after June approximately.

21 JUDGE BONOMY: Thank you.

22 Mr. Ackerman.

23 MR. ACKERMAN:

24 Q. So I take it it's your contention that all of the Serb males 16

25 years and up that lived in -- at least in your municipality wound up

1 wearing uniforms and carrying weapons. Is that true?

2 A. We saw them on the roads, and we spoke with them.

3 Q. Well, that's not an answer to my question. Is it your contention

4 that all of the Serb males in the Suva Reka municipality, 16 years and up,

5 wound up wearing uniforms and carrying weapons, all of them?

6 A. I'm only speaking of the neighbourhood in Suhareke where I lived

7 and what I saw. As for other villages, Mushtishte and other villages, I

8 didn't go to see whether they were uniformed or not. Those that were in

9 my neighbourhood were uniformed, the neighbourhood in Suhareke where I

10 live.

11 MR. ACKERMAN: That's all my questions, Your Honour. Thank you.

12 JUDGE BONOMY: Thank you, Mr. Ackerman.

13 Mr. Bakrac.

14 MR. BAKRAC: [Interpretation] Thank you, Your Honours. I have been

15 successful in predicting some things, but I still have some questions

16 left.

17 Cross-examination by Mr. Bakrac:

18 Q. [Interpretation] Mr. Berisha, I'm Mihajlo Bakrac, one of Vladimir

19 Lazarevic's Defence counsel. Right at the outset, I'll try to be very

20 direct and ask you the following question: Can you tell me who made the

21 suggestion to you after providing your statement and giving evidence in

22 the Milosevic case, now for the fourth time, in all these situations where

23 you previously only referred to the police to finally mention the army in

24 the same context?

25 A. I said myself that we saw people uniformed and in the army and the

1 police, from those that used to live together with us. Who provided them

2 with uniforms and how, those people sitting behind you should know. But I

3 personally saw them wearing uniforms, both of the police and the army.

4 JUDGE BONOMY: I'm looking for the passage, Mr. Bakrac, but is it

5 accurate to say that this is the first occasion on which there's been a

6 reference to the army?

7 MR. BAKRAC: [Interpretation] Your Honours, perhaps the witness did

8 not understand me. I wanted to ask him previously, then I'll tell you

9 where for the first time. He just didn't understand me.

10 Q. So, sir, in your statement dated the 17th of August, 2001, on page

11 3 of the Serbian and the English, you said: "On the 25th of March, 1999,

12 at about 6.30 in the morning, about -- between 20 and 30 family members of

13 the Ramadan and Berisha families, who all lived in the centre of Suva Reka

14 passed my house which was behind the municipality building. They told me

15 that near their houses people had been killed and robbed and that they

16 were now running from the Serbs to avoid the same thing happening to

17 them."

18 Is it true that you said this, sir?

19 A. Yes.

20 Q. That's quite sufficient. Please try to be as brief as possible;

21 that way we can end as soon as possible. As for this same event in the

22 Milosevic trial transcript on page 7452, lines 22 through 24, you

23 said: "On the 25th of March, between 6.00 and 6.30, the Ramadan and

24 Berisha families and other families with other family names travelled down

25 the Prizren-Pristina road until they reached our yard where they took

1 refuge. They said the Serbian police had been killing people along the

2 road leading to the old town and that they had burned down Agim Ramadani's

3 house."

4 So that is now a different statement, different evidence, quite

5 different from the previous evidence. Today on a page in the transcript

6 you said you -- you were told that they had been running from the Serbian

7 police and the army. Now, which of the three is actually true?

8 JUDGE BONOMY: Well, I don't know how the witness can possibly

9 follow that question. And we are also now referring to parts of the

10 transcript we don't have in front of us.

11 Mr. -- what --

12 MR. MARCUSSEN: Sorry, that was what I wanted to point out, that

13 we don't have that transcript reference.

14 JUDGE BONOMY: Well, today we're in a rather unusual --

15 exceptional situation. But if you're going to rely on this, you're going

16 to have to have it in the system. Do you have it introduced, page 7452?

17 MR. BAKRAC: [Interpretation] Your Honours, it's what we discussed

18 today. The situation was such that we only received the transcript very

19 late, and what we see happening now is exactly what we had predicted when

20 we first raised our objection and then you --

21 JUDGE BONOMY: It will have to be introduced and it will have to

22 have a number. So what's the next fifth Defence number, do you know?

23 MR. BAKRAC: [Interpretation] Just a minute. We'll have it all

24 checked.

25 [Defence counsel confer]

1 JUDGE BONOMY: Well, we need to do that before you finish, but

2 then let's --

3 MR. BAKRAC: [Interpretation] Your Honours, I think the number is

4 5D7 and then we can have a look and see if we can find it. I've been

5 looking through these and I'm sure that we can have this in e-court.

6 JUDGE BONOMY: So you've already got it in the system, have you --

7 MR. BAKRAC: [Interpretation] No, no, we don't have it as yet, but

8 we just tracked it down in the transcript, the English, and we'll try to

9 have it converted into e-court.

10 JUDGE BONOMY: Let's.

11 Sorry, Mr. Marcussen, what's the problem?

12 MR. MARCUSSEN: Maybe just to move on. I can stipulate to the

13 fact that the only reference at page 7452 at line 22, the only reference

14 in that part of the Milosevic transcript is to the Serbian police. Then

15 maybe we don't need to --

16 JUDGE BONOMY: We don't need the document in that case.

17 But you'll need to put that question slowly again. I couldn't

18 follow the question, I'm afraid.

19 MR. BAKRAC: [Interpretation] Of course Your Honours. Regardless

20 of my desire to rush through this cross-examination, I'll try to repeat

21 and slow down.

22 Q. Mr. Berisha, the first time you gave evidence was on the 17th of

23 August, 2001, which you've just confirmed. As I have just read out to

24 you, this specific event and conversation about the people who were

25 running away on the 25th of March at 6.30, you paraphrased their words,

1 what you were told at the time, and said that they had been running from

2 the Serbs. And then at the Milosevic trial, we see that in the

3 transcript, the page number is the one previously quoted as well as the

4 relevant lines, which has been confirmed by the Prosecutor, you say that

5 they told you that they were running from the Serb police, whereas today

6 you have a new story in relation to the same event and you're telling us

7 that they told you at the time that they were running from the Serbian

8 police and the army. Now, which of the three versions of this account is

9 actually true?

10 A. The last one that you mentioned is the truth, because they live

11 across the street from us. And Agim that I mentioned, he is the son of

12 Ramadan Berisha. They left because of the army and the police. They were

13 coming from the Pristina direction to Suhareke, and they blocked the road

14 from Pristina to Prizren. And all of them then entered into my --

15 Q. Sir, Mr. Berisha, if you say that the last thing I put to you is

16 true, then I can only conclude that you perjured yourself at the Milosevic

17 trial. You kept silent about something that was absolutely material, and

18 you were under oath. So what you tell us today is true, but what isn't

19 true is what you said at the Milosevic trial; is this what you're trying

20 to tell me, sir?

21 A. Well, the army and the police were together, and on the street on

22 the 25th of March there were people who were killed, 34 people, brothers

23 Hoti, Elshani, and so on.

24 Q. My question to you was specific. You never mentioned that. This

25 is the very first time you've mentioned it. I'm going to ask you about

1 something else that was also your evidence at the Milosevic trial.

2 MR. BAKRAC: [Interpretation] Your Honours, the relevant page is in

3 a portion proposed by the OTP, tendered into evidence by the OTP, it's

4 7458, lines 13 through 15.

5 Q. You say: "The Serb army were in a dumper at the Dule pass. The

6 army would only pass through Suva Reka when passing through Prizren and

7 the Dule pass."

8 Witness, is this true, was this also your testimony at the

9 Milosevic trial or is this also false?

10 A. They were positioned or stationed at the dumper in Birac and the

11 Dule -- Qafa e Dule. But that day they entered the town but their normal

12 positions, their usual positions were in Birac, Dule, and the dumper. But

13 in Suhareke -- there were no forces in Suhareke normally.

14 Q. So what you said at the Milosevic trial was true; right?

15 A. Yes, permanently stationed, yes.

16 Q. And they only passed through Suva Reka when they were on their way

17 to their positions. Isn't that right? You did say that, didn't you?

18 A. That day, on the 25th, there were forces inside the town. They

19 came around, but as I said the soldiers were in town that day.

20 Q. You are telling us for the very first time today; you've just

21 remembered; right?

22 A. No, no. Their permanent positions were at the dumper in Birac and

23 Qafa e Dule, but they used to go along, not only once but several times.

24 They used to pass, but the locals -- the locals were in town, the ones

25 that I mentioned --

1 Q. That's precisely what my question was about. Thank you, sir.

2 Excellent. Thank you so very much. We'll move on to my next question.

3 It's about the date when you say the mosque was booby-trapped --

4 or rather, the minaret was blown up. In your first statement on the 17th

5 of August, 2001, you said: "On the 28th of March, at about 1155 hours, I

6 heard an explosion and I realised that the minaret had been blown up. I

7 called a relative of mine on the phone who lived near the mosque, who then

8 told me that the Serbs had blown the minaret up. This happened on Bajram

9 day when the mosque was normally full of Albanians. At about 6.00

10 p.m. that evening, a local Serb neighbour," and so on and so forth and

11 then you continue with that story. I'll avoid repeating that just to

12 speed things up a little. And he said that you should leave and Mr.

13 Ackerman asked you about that. Is that true, sir, what you said?

14 A. Yes, that's correct, it was 1155 hours on that day, yes.

15 Q. Excellent. At the Milosevic trial you also said in relation to

16 this same event - and I'm curtailing this, I'll avoid reading the

17 beginning. "On the 28th of March, at about 1155 hours he heard an

18 explosion -- you heard an explosion. In the meantime, about five or six

19 minutes later, along the road leading to Pristina, we saw a camouflage

20 vehicle heading for Birac at a distance of 3 kilometres from Suva Reka

21 where the military forces were stationed."

22 Today you tell us that you saw a red military vehicle?

23 A. No, I said camouflage. I didn't say red. It was patterned, I

24 mean camouflaged, a Gazik. I did not say red.

25 MR. BAKRAC: [Interpretation] Your Honours, if we look at today's

1 transcript, page 47, lines 6 through 8, it reads: "A red vehicle, and the

2 only vehicle moving at the time. It was coming from the direction of

3 Birac and it was a military vehicle."

4 Q. Now, tell us, sir, which is true? The first time you gave

5 evidence back in 2001 you made no reference whatsoever to seeing that

6 vehicle at all. You only said you had heard from a neighbour that the

7 Serbs had blown up the minaret. At the Milosevic trial you said that you

8 had seen a camouflage vehicle. And today you say it was red. So which of

9 the three different accounts is true?

10 A. Today -- I don't know about the interpreting, but I did not

11 mention the red. I said camouflage colour. I don't know that I mentioned

12 red today. I don't know about the interpretation. I said Gazik formerly

13 and I said today Gazik. So I'm repeating, a camouflage-colour vehicle,

14 Gazik, in the direction of Birac. Maybe it was the interpretation. I

15 never mentioned red -- the red colour.

16 JUDGE BONOMY: It's enough to say it once.

17 Mr. Bakrac, we'll have the interpretation checked, and you'll be

18 told on -- once it's double-checked what the situation is.

19 MR. BAKRAC: [Interpretation] Your Honours, that was the

20 interpretation I received. I see the same thing in the transcript;

21 therefore, I have no reason to doubt the accuracy of this particular piece

22 of interpretation. But we can have it checked.

23 Q. Sir, when you say "Gazik," what sort of a vehicle is that? Can

24 you describe that vehicle for us, please.

25 A. It's a Russian car. It's a Russian make car, but I never

1 mentioned the red colour that you said.

2 Q. Is that a combat vehicle?

3 A. Yes, it is.

4 Q. [Previous translation continues] ...

5 A. [Previous translation continues] ... with patterns.

6 Q. Did it have a cannon or something?

7 A. No, camouflaged.

8 Q. When you say "camouflaged," did it have a camouflage or was it

9 just the camouflage colour?

10 A. I meant camouflage colours, camouflage colours.

11 Q. Mr. Berisha, never until this day, not in your first statement

12 which I've read out to you, not at the Milosevic trial, did you ever think

13 to mention about your neighbour telling you or you having seen who was

14 actually in that vehicle, yet today you tell us you saw the police and the

15 army. Is this something you've just remembered today, sir?

16 A. No. When I -- I rang them. My cousin is married to the Elshani

17 family and to the Elshani family, and they had seen people in military

18 uniform. I couldn't see the car, the vehicle, because they were inside a

19 building and I couldn't see them from my house.

20 Q. Excellent. You didn't see the vehicle. They told you what they

21 saw inside the vehicle. When did they tell you that?

22 A. I saw the car, but not the people inside the car. I saw the car

23 on the 28th of March, 1999. It was two or three minutes after 1200 hours

24 when it passed that way. At 1155 I heard the detonation, the explosion.

25 Q. I am trying to wrap this up by 7.00. Please, give specific

1 answers. I didn't ask you about the time you heard the explosion or

2 anything like that. Please, try to focus on my questions.

3 I asked you when you were told by your neighbours that they had

4 noticed persons in military and police uniforms. When exactly were you

5 told this by your neighbours, sir? Did they just tell you before you

6 arrived in The Hague or what?

7 A. That day, that same day on the 28th of March, 1999, it was about

8 12.00, a couple of minutes past 12.00.

9 Q. [Previous translation continues] ... excellent. Now tell me why

10 you never thought to mention this and yet you had at least three

11 opportunities. Twice your statement was taken by OTP investigators. You

12 told them about this specific event, about this specific vehicle, yet you

13 never mentioned this, not at the Milosevic trial, either. If you had been

14 told on the same day, why didn't you ever think to mention this to anyone

15 until this very day?

16 A. I said that I heard the explosion and I saw the car.

17 Q. [Previous translation continues] ... what you heard. I'm asking

18 you very specifically why today, for the very first time, after seven

19 years you are telling us about a fact which you were specifically asked

20 about. You had at least three opportunities to speak up.

21 A. Well, there is the difference in time, of course, from 1999 till

22 today, and maybe I've -- have forgotten something, minor details. Maybe

23 then I did forget something and maybe today also.

24 Q. Okay. So you've just remembered, haven't you?

25 A. Of course.

1 Q. Thank you very much, Mr. Berisha.

2 What about those relatives of yours -- or you, because you're also

3 on the record as saying that you actually saw the vehicle yourself. So

4 did anyone actually see the vehicle stop and people being disgorged out of

5 that vehicle?

6 A. I saw the car moving. Now, they went in the direction of Birac.

7 It did not stop. When I saw the car, it was moving. Because it's only

8 300 metres from the mosque to my house, and the road leads to Birac. The

9 car did not stop; it just went in the direction of Pristina and Birac.

10 Q. Did you actually see where it had started out from?

11 A. The direction I saw, which was in the direction of Pristina. The

12 direction -- they were heading towards Birac, from Pristina to Birac.

13 Q. Mr. Berisha, what I'm asking you is: Did you actually see this

14 vehicle leave and where did it leave from?

15 A. I couldn't see that -- I mean where it set off from. But I could

16 see the car because it's an open area that you can see the car. I could

17 see the street.

18 Q. Yes, yes, I do understand that, Mr. Berisha, but there's something

19 else I want to know, briefly, at least. I'm doing my best because we've

20 only five minutes left. I'm trying to conclude my cross-examination, you

21 see. Did your relatives see where the vehicle had come from or where it

22 had started out from?

23 A. Yes, their house is right there, close to the mosque, very close

24 to the mosque.

25 Q. I'm not asking you about the location of their house; I am asking

1 if they told you at the time where the vehicle had set out from.

2 A. Yes. They started out from -- the vehicle started out from the

3 mosque, from the vicinity of the mosque, in the direction of Birac.

4 Q. And you've just remembered today of all days and you're telling us

5 now for the very first time - right? - about them telling you that it had

6 started out from outside the mosque?

7 A. No, I said it even then that it started out from there. It

8 started out from there, and it was -- the vehicle was seen because the

9 mosque was very close, the car was parked near the mosque when the

10 explosion happened.

11 Q. When did you say that?

12 A. I said it then and I'm saying it today as well.

13 Q. Would you like me to read the relevant portions on this event to

14 you again? "In the meantime," and this is from the Milosevic

15 transcript, "In the meantime, five or six minutes later, after you'd heard

16 the explosion that is, along the road to Pristina we saw a camouflaged

17 vehicle moving towards Birac, which is 3 kilometres from Suva Reka where

18 the military forces were stationed. We saw that the mosque minaret in

19 Suva Reka had been blown up. This was Bajram day, which was a Muslim

20 holiday."

21 This is the very transcript. You make no reference whatsoever

22 there. You say five or six minutes after the explosion you saw this

23 vehicle moving along, whereas in your statement dated the 17th of August,

24 2001, you say: "On the 28th of March, at about 1155 hours I heard an

25 explosion and saw that the minaret had been blown up. I called a relative

1 on the phone who lived near the mosque and he told me that the Serbs had

2 blown up the minaret. This happened on Bajram day," and so on and so

3 forth.

4 Never so far have you mentioned the fact that your relatives told

5 you about the vehicle setting out from outside the mosque, have you? Is

6 that correct?

7 JUDGE BONOMY: Well, Mr. Marcussen.

8 MR. MARCUSSEN: Maybe I could ask for a reference -- it was my

9 understanding from the Milosevic transcript that -- that the relatives did

10 see the vehicle outside the mosque, but maybe I'm missing what the point

11 is, but that was my understanding.

12 The second thing I'd like to -- we have requested to make --

13 JUDGE BONOMY: Just -- I understand -- I know what you want to do.

14 Just sit down and I'll deal with procedural things as and when it's

15 convenient. All right. That would not have been a good reason for

16 interrupting anyone's cross-examination.

17 Now, Mr. Bakrac, this is too complicated a question for tonight.

18 It's really not a helpful way to try and get to the basis -- for example,

19 I don't at the moment know whether the part you've quoted from the

20 Milosevic trial was cross-examination, nor have you -- is it clear to me

21 whether the question was ever asked. So it's -- it's not really terribly

22 helpful, but you can reflect overnight on whether there might be a better

23 way of asking the question to try and assist your own case, bearing in

24 mind what answers you've been securing so far.

25 MR. BAKRAC: [Interpretation] If you just allow me a second,

1 Your Honour. He was a 92 bis witness, he was heard as a 92 bis witness --

2 or rather, his statement was read out, the statement that I'm quoting.

3 Everything apart from that was in cross-examination at the Milosevic

4 trial. What this means is his statement was read out by the OTP. No

5 additional questions, and they started the cross-examination right away.

6 JUDGE BONOMY: So whenever you refer to his answers they're in

7 cross-examination, which puts an entirely different impression on -- on

8 them. It depends what the question was and what the questioner was trying

9 to achieve. However, you can address the matter again tomorrow.

10 Now, Ms. Carter, I understand you have an application to make.

11 MS. CARTER: Yes, Your Honour, at this time the Prosecution is

12 seeking to amend the 65 ter summary of the following witness, Ali Gjogaj.

13 Apparently the materials were disclosed to the Defence with regards to

14 this 92 bis package first in case number 9937 to the original MOS

15 defendants on the 30th of January, 2003. The materials were then

16 disclosed to the final defendants on June 30th, 2005, under thousand

17 number 0370. They were also a part of the 92 bis package that was

18 filed --

19 JUDGE BONOMY: Let me know, first of all, what it is you want to

20 do. I mean, there's no point in giving me all this information until I

21 know what the application is. I know it's to vary the 65 ter summary, but

22 I need to know in what respect before anything else makes any sense to me.

23 MS. CARTER: Certainly, Your Honour. There needs to be an

24 additional paragraph added to the 65 ter list. When the 65 ter was

25 originally drafted it appears to only be referencing the first statement

1 of the witness and is completely silent as to the second statement of the

2 witness, which we do intend to lead evidence on. There also needs to be a

3 correct --

4 JUDGE BONOMY: So, how has that happened?

5 MS. CARTER: Your Honour, I cannot speak to who originally drafted

6 the 65 ter list. Once this attorney became aware of the witness and

7 became responsible for this witness, I began to go through the materials

8 and make amendments as quickly as possible. This has only come to light

9 to me very recently, and as soon as that did come to light, I began making

10 procedures to put the Defence on notice. The Defence was given the last

11 break a proposal for the 65 ter amendment in order to put them on notice

12 about the arguments that are going to be made here today.

13 JUDGE BONOMY: So what -- we've a whole statement of the witness

14 that isn't heralded in your 65 ter summary? Is that -- that's correct.

15 MS. CARTER: [Microphone not activated]

16 JUDGE BONOMY: And when did you become aware of that?

17 MS. CARTER: Frankly, Your Honour, the materials came to this

18 attorney yesterday. And once I received the materials, I began making all

19 possible checks.

20 JUDGE BONOMY: Well, you see, you would really need to be able to

21 explain to us why this situation had arisen in the first place, which at

22 the moment you don't appear to be able to do.

23 MS. CARTER: Your Honour, I've tried to do some investigation to

24 figure out what exactly happened. This appears to be the first 65 ter

25 summary that was also being used in Milosevic, which is actually

1 surprising to this attorney because in the Milosevic case the entire 92

2 bis package was brought into Court, which did include the second

3 statement. The witness was cross-examined on it. It appears at all times

4 that the entire -- both statements had been at issue, but for whatever

5 reason in the Milosevic trial and then beginning into this trial, the 65

6 ter summary was not complete.

7 JUDGE BONOMY: Now, the statement is dated the 24th -- is it the

8 24th of June statement?

9 MS. CARTER: Yes, Your Honour, it was only a few short months

10 after the original statement was taken, so it's unclear why it is not a

11 part of the original 65 ter summary.

12 JUDGE BONOMY: And what is it that it deals with that is not in

13 the existing summary?

14 MS. CARTER: It most directly goes to paragraph 75(d) of the

15 indictment, Your Honour, it's dealing with the removal of bodies from the

16 artillery field that is in issue here in Suva Reka --

17 JUDGE BONOMY: The first statement does that as well.

18 MS. CARTER: No, actually, Your Honour, that deals with Pusto Selo

19 which was several -- that removal was several weeks after the artillery

20 range was addressed.

21 JUDGE BONOMY: Now, do you have the proposed amendment to your 65

22 ter summary to give me?

23 MS. CARTER: Yes, Your Honour, I have it in hard copy form.

24 Ms. Grogan can tender it to the assistants.

25 JUDGE BONOMY: And this you've already given to the Defence?

1 MS. CARTER: Yes, Your Honour, they were given this in the last

2 break. The portions that are at issue is the final paragraph which I've

3 bolded to be able to draw it to the attention of the Court.

4 JUDGE BONOMY: All right. Thank you.

5 Now, Mr. Berisha, we have no more time this evening to hear any

6 further evidence, so that means that you will have to come back tomorrow

7 to continue your evidence. We will be resuming at 2.15 tomorrow, so you

8 need to be back here able to begin giving evidence at 2.15. Between now

9 and then, it's vital that you should not discuss your evidence with

10 anyone, and that means the evidence you've already given and the evidence

11 you may yet give in the case. You can talk about anything else to whoever

12 you like, but don't talk about the evidence. Okay.

13 So you can now leave the courtroom and we'll see you tomorrow at

14 2.15.

15 THE WITNESS: [Interpretation] Thank you.

16 [The witness stands down]

17 JUDGE BONOMY: You should have an opportunity, Ms. Carter, to try

18 and provide us with more information to explain why this has happened, and

19 I'll hear you again before we commence further with this witness tomorrow

20 at 2.15.

21 MS. CARTER: [Microphone not activated].

22 --- Whereupon the hearing adjourned at 7.06 p.m.,

23 to be reconvened on Thursday, the 21st day of

24 September, 2006, at 2.15 p.m.

25