1 Thursday, 21 September 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.20 p.m.

5 JUDGE BONOMY: I'm sorry about the late start this afternoon, but

6 I gather the earlier trial again overran in circumstances that were not

7 foreseen.

8 What I propose this afternoon is that we deal first of all with

9 the balance of the argument over the amendment to the 65 ter summary in

10 respect of the next witness.

11 Ms. Carter.

12 MR. HANNIS: Your Honour, if I may address that issue.

13 JUDGE BONOMY: Yes, Mr. Hannis.

14 MR. HANNIS: Given the nature of the issue, Your Honour, since

15 Mr. Stamp and I are the senior trial attorneys on this case and we're

16 ultimately responsible for the things that happened wrong or -- hopefully

17 we'll get some credit for the things that go right, but we have to accept

18 the responsibility, ultimately it's ours to shoulder and so I feel I

19 should speak to it as opposed to Ms. Carter.

20 JUDGE BONOMY: Very well.

21 MR. HANNIS: I'm not sure where we left off yesterday when you

22 asked us to do some further investigation. I can tell you we have done

23 some. It is an error on our part. It is something that perhaps should

24 have been in there but wasn't. But I would indicate this was a 92 bis

25 witness, 92 bis (D). The package included both his prior testimony and

1 both his statements in which this material is contained. The 92 bis

2 request was granted and this witness was required to come for

3 cross-examination.

4 JUDGE BONOMY: When you talk about the 92 bis (D) package, though,

5 you're talking in jargon in respect of the timing of notice, I understand

6 that that's how you present it to the Court. But are you saying that in

7 some way there was a package delivered to the Defence at a much earlier

8 stage that would easily have alerted them to the fact that you intended to

9 refer to two statements?

10 MR. HANNIS: Well, yes, Your Honour. When we originally disclosed

11 the statements and the transcript to the original three MOS defendants in

12 January of 2003, in May -- I'm sorry, June 30th of 2005, the most recent

13 three indictees were provided that discovery. The 92 bis --

14 JUDGE BONOMY: Yeah, but that --

15 MR. HANNIS: -- package was filed.

16 JUDGE BONOMY: That's general disclosure or is this supporting

17 material for the indictment?

18 MR. HANNIS: This was Rule 66 disclosure.

19 JUDGE BONOMY: Yeah.

20 MR. HANNIS: But when we filed the 92 bis package in association

21 with your 92 bis motion that we filed with the Court, that was filed on

22 the 20th of May this year -- the 26th of May, I'm sorry. And on the 4th

23 of July is when Your Honours ruled on the -- the motion and agreed with

24 our position that this material was appropriate for treatment as 92 bis

25 for in addition, but the witnesses would be required to attend for

1 cross-examination.

2 JUDGE BONOMY: Well, let me be clear about these various things.

3 Are you saying that the transcript which plainly refers to the two

4 statements was disclosed under 66(A)(i) as part of the supporting material

5 for the indictment?

6 MR. HANNIS: No, Your Honour. I think it was only disclosed under

7 66(A)(ii).

8 JUDGE BONOMY: I was apprehensive after yesterday that this might

9 not be an isolated problem. If you have failed in other areas also to

10 update the 65 ter summary from the Milosevic trial, we would effectively

11 have 65 ter material frozen as at 2001. Now, ought we to be fearful that

12 that may be the case?

13 MR. HANNIS: Well, Your Honour, in light of what has happened up

14 to this date, I have some concerns about that and we are engaged in the

15 process of reviewing all 65 ters because of what has occurred recently.

16 JUDGE BONOMY: You see, I made a general statement of anxiety

17 yesterday about the way in which a number of witnesses appear to be being

18 presented on the basis of very historical material, as if no one had had a

19 serious look at it since 2002 when all the Kosovo witnesses seem to have

20 given evidence in the Milosevic trial. And that disturbed me, obviously,

21 because of the effort that I thought had been made by everyone to -- in

22 the course of the pre-trial work to streamline the case.

23 Now, what you're really saying to me is, if you don't know the

24 answer to the question whether this is a common problem, that you don't

25 really have an explanation for why it's happened?

1 MR. HANNIS: Well, in this particular case, Your Honour, again --

2 I guess this is a matter that I would ask Your Honours to leave to me and

3 our office in particular to deal with because it's -- it's a matter that

4 we have to resolve internally.

5 JUDGE BONOMY: Yeah, but it's got wider implications than that,

6 Mr. Hannis. If it's a serious problem, then it will need to be addressed

7 by the Court, I suspect.

8 MR. HANNIS: Well, ultimately I'm sure that that's true,

9 Your Honour, if we don't correct the problem. If it continues to be a

10 problem, then I would agree.

11 JUDGE BONOMY: The original 65 ter summary for this case

12 identifies the witness as speaking to two paragraphs of the indictment

13 that don't really make the position remotely clear. In paragraph 16 of

14 this indictment is a very general one-sentence paragraph.

15 MR. HANNIS: Your Honour, perhaps I'm looking at the wrong

16 version. I'm looking at the witness notification that makes reference to

17 paragraph 72(b) and (d) and 75(d). Are you looking at a 65 ter from May

18 of 2000?

19 JUDGE BONOMY: No --

20 MR. HANNIS: 10th of May --

21 JUDGE BONOMY: May 2006.

22 MR. HANNIS: Your Honour, I don't have that before me. And that

23 may have been -- I don't know if paragraph 16 changed after that date when

24 we amended the indictment.

25 JUDGE BONOMY: The one thing it does do -- well, one thing you can

1 rely on about it is that it refers to Rule 92 bis (D) giving clear notice

2 that it's the transcript that's the foundation of the evidence for this

3 witness.

4 MR. HANNIS: And in Milosevic, as you know, most of those

5 witnesses who appeared, their 92 -- their statements were put in under 92

6 bis (B) as part of the 92 bis (D) evidence.

7 JUDGE BONOMY: I think you have a matter that needs urgent

8 attention, Mr. Hannis. And by what I mean the -- the question whether

9 there's a general problem here.

10 MR. HANNIS: I will give it that urgent attention, Your Honour.

11 JUDGE BONOMY: Now, I may come back to you once we hear what has

12 to be said by the Defence.

13 Mr. O'Sullivan.

14 Mr. Ackerman.

15 MR. ACKERMAN: Your Honour, the -- I sometimes rise with

16 trepidation because I make representations based upon the state of my

17 preparation --

18 JUDGE BONOMY: Can I -- can I maybe assist by indicating what --

19 having a -- having read through the -- all the papers that might be

20 relevant, at least that I think are relevant, I have established -- there

21 is one paragraph of the indictment which says quite a bit about what this

22 evidence relates to, and I think it is 75(d).

23 MR. ACKERMAN: Well --

24 JUDGE BONOMY: And in that, there's a reference to both of these

25 burial sites.

1 MR. ACKERMAN: Yes. I don't contest that, and I don't contest

2 that it's part of the indictment and I don't contest that the Prosecution

3 has a right to put on this evidence. I contest none of those things.

4 What I'm concerned about is, is the question of notice and whether these

5 65 ter summaries have any effect at all or not or whether we should start

6 ignoring them.

7 JUDGE BONOMY: Well, can I say that I think this particular event

8 has identified the possibility of a more widespread problem, but we're

9 going to find that out later.

10 MR. ACKERMAN: Yeah.

11 JUDGE BONOMY: I would prefer to deal with this issue in the

12 knowledge of the width of its spread through the 65 ter notice. So far as

13 this witness is concerned, my own provisional view at the moment is that

14 there is enough indication by reference to the witness being a 92 bis (D)

15 witness, therefore transcript which includes two statements, plus the

16 terms of this paragraph of the indictment, to say that it would be quite

17 difficult to refuse to hear this evidence. But as with the previous case,

18 if you were to indicate a particular difficulty in dealing with

19 cross-examination, then we would be sympathetic to any motion for

20 adjournment and possibly preferably re-call of the witness in the

21 circumstances. But looking at this one as an isolated example, my

22 inclination would be to allow the evidence to be led, subject to anything

23 else that's said.

24 If there's a broader problem, I would not regard that as having

25 established any precedent for dealing with the broader issue.

1 MR. ACKERMAN: Well, Your Honour, as I started in my remarks, that

2 I think the Prosecution has every right to call this evidence. It's not a

3 question of whether in my mind but a question of when.

4 JUDGE BONOMY: Yeah.

5 MR. ACKERMAN: It may be my error, and it very well could be, but

6 it just never occurred to me until this document was handed to me

7 yesterday that I should look into this matter and be prepared to

8 cross-examine on this matter, and it probably should have but it didn't.

9 The other thing -- and --

10 JUDGE BONOMY: No, I think -- the reason I say I think this one is

11 exceptional is because that paragraph of the indictment is so specific.

12 It's one of the -- it's the --

13 MR. ACKERMAN: I know.

14 JUDGE BONOMY: -- the flip-side of the other problem that we had

15 earlier in the week.

16 MR. ACKERMAN: The other -- the other issue, Your Honour, is that

17 unless again I am just deficient in my preparation, I know I am in many

18 respects, we were given I think yesterday a brand new statement of this

19 witness that was given on 16 May 2005 to a judge from a court in Belgrade.

20 And you've seen one of these statements at least before. We got it only

21 in B/C/S. I have sent it off for translation to CLSS, asking them to rush

22 it as much as possible. I am told by people on my staff that read B/C/S

23 that -- that there are some matters in here that I would want to be aware

24 of before I cross-examine this witness. And of course, as you know, Your

25 Honour, in the process of cross-examination from a document like this you

1 need to be pretty precise. You can't just say: My colleague told me this

2 says such and such, and ask a question on that basis.

3 So I wouldn't oppose this witness being called; I would simply ask

4 that he be called at some later date, maybe 30 days from now, and that

5 would give everybody a chance to investigate this paragraph that was added

6 yesterday plus a chance to look at this new statement and see what impact

7 it might have on cross-examination. But I can tell you, I'm -- with this

8 I'm not prepared to go forward and cross-examine this witness today.

9 JUDGE BONOMY: The new statement is news to me. It must be simply

10 as a piece of disclosure to you rather than something that's to be used as

11 part of the evidence.

12 MR. ACKERMAN: That's exactly right.

13 MR. HANNIS: That's right, Your Honour. This is something the

14 witness brought with him when he came. It's his testimony in a state

15 court proceeding in these same matters that we didn't have until -- we

16 didn't know existed until he brought it and gave it to us.

17 JUDGE BONOMY: Do you know, Mr. Ackerman, whether the next -- I

18 think there are two other witnesses who may be available this week. Do

19 you know if they are likely to give rise to problems of this nature?

20 MR. ACKERMAN: Your Honour, I didn't think so until 1.30 when we

21 received a brand new supplemental information sheet for this -- for that

22 witness. At 1.30 today. I mean, I'm just -- luckily I was looking at my

23 computer instead of riding my bicycle to court.

24 JUDGE BONOMY: Which one is that?

25 MR. ACKERMAN: That's Mr. Zogaj, Shefqet Zogaj, and I'm going to

1 be frank, Your Honour. I think the problem is we are all working beyond

2 our capacity in many ways. I'm getting so tired I can barely stand and

3 talk to you because we're working so many hours and the Prosecution is

4 doing the same thing. I'm not blaming the Prosecution for being late with

5 these things. I think they're doing the best they can. We're just

6 operating under such pressure that it's affecting -- things are getting --

7 spiraling out of control here. We think we need to get a little bit

8 better organised.

9 JUDGE BONOMY: I'll not comment too quickly on where you think the

10 blame lies, Mr. Ackerman.

11 Mr. Hannis, this is beginning to prevent, I think, progress at the

12 moment. It sounds as though -- in fact, is Mr. Zogaj the next witness or

13 is he next but one.

14 MR. HANNIS: Mr. Gjogaj, G-j-o.

15 JUDGE BONOMY: Z-o-g-a-j I think?

16 MR. HANNIS: Yes, would be the next one and after him a

17 Mr. Zogaj --

18 JUDGE BONOMY: Well, Zogaj I think -- give me a second until I

19 find the list.

20 MR. HANNIS: Mr. Shefqet Zogaj.

21 JUDGE BONOMY: Which is the witness that you've disclosed another

22 supplementary sheet for?

23 MR. HANNIS: That's Mr. Zogaj. He brought with him materials that

24 we had not seen before when he was proofed this morning. Your Honour,

25 this week we're running a day behind in terms of when our witnesses are

1 arriving because of the anticipated --

2 JUDGE BONOMY: So Ali Gjogaj, there's no problem with?

3 MR. HANNIS: He's here and ready to go, but that's the one we have

4 the problem with the amended 65 ter --

5 JUDGE BONOMY: Oh, yes, sorry. And then Zogaj is -- what about

6 Fondaj?

7 MR. HANNIS: Fondaj, Your Honour, was supposed to arrive

8 yesterday. I received an email last night saying she was not on the

9 plane. She was travelling with a support person and there were only --

10 there was only one seat available. She would not travel without her

11 support person, so she's not arriving until 10.00 tonight. She's never

12 testified before, she's not been proofed, Your Honour, and if we have a

13 morning session tomorrow, I found that I was going to be in a difficult

14 position to put her on without any proofing or being proofed at 7.00 in

15 the morning after being in bed at midnight on her first trip to The Hague.

16 Your Honour, I would like to suggest rather than rescheduling

17 Mr. Gjogaj, because the Defence has had both his statements and his

18 transcript, we proceed with him today. If it turns out that there are

19 real problems because of the state court transcript that he brought with

20 him, perhaps he could be called back at a later date for

21 cross-examination, but it may evolve that it won't be necessary. I

22 suggest that is the way to try and salvage some of the time this week.

23 I'm sorry, it's a statement, not a transcript from the state court.

24 JUDGE BONOMY: It is a statement, is it?

25 MR. HANNIS: Yes.

1 JUDGE BONOMY: And it's not something you're relying on?

2 MR. HANNIS: No. We only have it in B/C/S. It hasn't been

3 translated yet.

4 JUDGE BONOMY: And what about the supplementary material for the

5 next witness after that?

6 MR. HANNIS: Mr. Stamp may be able to address that. He proofed

7 him this morning and can tell you what the nature of that material is.

8 JUDGE BONOMY: Well, Mr. Stamp, is that material you'll be relying

9 upon?

10 MR. STAMP: No, Your Honour. The material, although it's quite

11 extensive --

12 JUDGE BONOMY: I'm sorry?

13 MR. STAMP: It will not be material that we are relying on. It

14 is -- it is -- it relates to the contents of his proposed testimony, but

15 the -- there are three books that he has recently written about his

16 testimony before the ICTY and they are -- the matters that he witnessed.

17 JUDGE BONOMY: All right. Thank you.

18 Well, does anyone have any separate point to make from those made

19 by Mr. Ackerman?

20 Mr. Sepenuk.

21 MR. SEPENUK: [Microphone not activated]

22 THE INTERPRETER: Microphone, please.

23 MR. SEPENUK: Simply on this witness, Zogaj, I'm just looking at

24 it now, the additional material, I have not seen it. And it's -- it's

25 really very extensive. Now, Mr. Stamp might not be relying on it because

1 I think quite frankly it has overwhelmed him. It is a huge bunch of

2 material, including books he's written on the very one of -- the very

3 subjects that he's going to be testifying about today and there could be

4 information in there that could be very important to this case. That's

5 what concerns me.

6 JUDGE BONOMY: I am -- I think we're all sympathetic to that, but

7 when witnesses have travelled and are available and we can take the

8 evidence in chief and any cross-examination that counsel feel able to

9 conduct, then it seems not unreasonable to do that. I don't see how that

10 will prejudice the situation, and indeed it may be that we could say we

11 expect you to carry out the cross-examination that you are prepared to

12 carry out and indicate clearly that we will be sympathetic to the re-call

13 of the witness should you demonstrate that there is more that you ought to

14 have been in a position to ask if you'd been given the material in

15 adequate time.

16 MR. SEPENUK: That's fine, Your Honour.

17 JUDGE BONOMY: So I think we will take up the proposal of

18 Mr. Hannis to proceed on that basis.

19 Mr. Ackerman.

20 MR. ACKERMAN: Your Honour, let me just say this. If there is

21 material that I have not had a chance to look at in terms of preparing

22 cross-examination, it would be foolish for me to do a partial

23 cross-examination because that material may completely change the whole

24 approach one takes to a cross. So I have no objection to these witnesses

25 being brought and put on for direct examination, but I don't think anyone

1 should be asked to do any cross-examination until they've seen all this

2 material.

3 JUDGE BONOMY: I think that decision ought to be left to

4 individual counsel --

5 MR. ACKERMAN: Well -- yes, of course.

6 JUDGE BONOMY: And others may have different views of how they

7 perceive the witness, but I hear what you say and we'll consider the

8 decision just in a moment and give you a final ruling on it.

9 MR. ACKERMAN: Thank you.

10 JUDGE BONOMY: Mr. Fila.

11 MR. FILA: [Microphone not activated].

12 THE INTERPRETER: Microphone, please, for Mr. Fila.

13 MR. FILA: [Interpretation] I think I should say something. First

14 of all, you said something, one particular word, which with all due

15 respect I did not like, Mr. President, and that is to see who is to be

16 blamed for what happened. I believe that the Prosecution cannot be blamed

17 at all. You see, I do not see the Prosecutors as people who came here to

18 do something that is not right. It's going to happen to us too, you know,

19 it's going to happen to us as well and then we're going to seek your

20 understanding just as I have understanding for them now. I mean, I'm

21 sorry, Your Honour, Judge Bonomy, it seems to me I'm telling you something

22 that is -- well, sort of something wrong, something that I shouldn't be

23 saying to you. But it's not the consequence that's a problem. I mean,

24 why would I believe that any one of the ladies and gentlemen of the

25 Prosecution did not want to show this to us earlier on and they could

1 have?

2 You see, we have a war crimes tribunal in Belgrade that is working

3 at full throttle and almost all these witnesses that you're going to hear

4 here are being heard in Belgrade as well. So let us deal with the cause

5 rather than the effect. I'm sorry to have risen. I'm sorry to take up

6 your time. But let us not deal with the effect. What you're doing now,

7 Your Honour, is resolving the effect of this. You are resolving the

8 problem of how I'm going to deal with my high temperature because I have a

9 cold, whereas I want to resolve the basic problem, I want to prevent a

10 cold. Now, let's see what the ladies and gentlemen of the Prosecution

11 suggest. How can we avoid this kind of situation from happening once

12 again, in your case and in our case, because it's going to happen to us,

13 too, you see.

14 You know, there is something I don't like about your system. I

15 watched the Milosevic trial and some witness called Aleksovski was heard

16 there. And then all of a sudden Mr. Nice was bothered by Aleksovski

17 talking about other witnesses as second-hand evidence, hearsay - you were

18 there yourself, Your Honour - and before that he was not bothered by

19 hearing hearsay witnesses during his own case.

20 I don't want to take up too much time, but let's have these common

21 rules of courtesy on both sides. Let us not lay blame anywhere. Because

22 if I believe that any one of the ladies and gentlemen from the Prosecution

23 wanted to do something on purpose, that would have been terrible, and that

24 would be impermissible. Let us try and find a solution, let us try to

25 see, say, that they be given all the records from the Belgrade court.

1 There's nothing wrong with that whatsoever because in Belgrade all these

2 people were heard a long time ago and this is probably going on in Bosnia

3 and Herzegovina, too, as well. For example, I heard about the Celebici

4 trial, the way that it ended here is now being repeated in Sarajevo --

5 well, I don't mean that it's totally being repeated but parts of it are

6 being repeated.

7 So let us look at all of this. Please, Your Honour, deal with the

8 cause. As for the effect, yes, I agree with you. Once these people have

9 arrived, yes, let's hear them, yes, but let's not have this repeated. I'm

10 sorry, I've really taken up a lot of your time, but believe me, I rise to

11 my feet with every good intention. Thank you.

12 JUDGE BONOMY: Mr. Fila, I am the first to acknowledge that there

13 has been goodwill displayed on both sides throughout the preparation for

14 and conduct of this trial and I've said so before. I'm not simply saying

15 so in response to your comments and I don't for a minute suggest that

16 there's any bad faith involved in anything that's happened, so you can be

17 re-assured on that score. However, I've spent already more than two years

18 in this case as a Pre-Trial Judge, and I thought that things were being

19 done by the Prosecution to streamline it. I've already said this

20 morning -- this afternoon, I will not make any judgement on where blame

21 might lie, but I may have to make that judgement in due course, depending

22 on the explanation that's given to me and the consequences that are --

23 that flow from that explanation. I'm relieved to some extent to hear what

24 has been said by the Defence this afternoon; it's very re-assuring. But

25 if in fact the events of the last two days were to be repeated on a

1 wholesale scale throughout the list of witnesses in this case, then it may

2 be that we have to have a major re-think of the trial and that, I'm

3 afraid, may have quite unacceptable repercussions.

4 So it's too early, I accept, to make any final judgement on the

5 situation. I don't accept that at this moment you can simply say: This

6 is an inevitable consequence of a case of this nature. I mentioned

7 yesterday that an instrument that we've had for more than a century, the

8 telephone, and the one that we've had for - I don't know, is it

9 approaching 30 years? - the fax, and I've just invited the Prosecution to

10 perhaps think using methods they haven't been using so far to solve a

11 problem that's arisen. I'm conscious of the need also to solve the

12 immediate problem. However, we'll hear more about these various issues at

13 a later stage. We'll consider these submissions and decide what action to

14 take in relation to the next two witnesses.

15 [Trial Chamber confers]

16 JUDGE BONOMY: Well, in relation to the witness Ali Gjogaj, we

17 will allow amendment of the Rule 65 ter notice. We will proceed to hear

18 the evidence in chief. If that's concluded today, we would invite counsel

19 to endeavour to be in a position to deal with cross-examination because so

20 far as that witness is concerned it's one statement we're talking about.

21 What's the length of the statement, then, Ms. Carter?

22 MS. CARTER: Your Honour, you're dealing with a five-page

23 statement that is predominantly spaced-out, that includes the cover page

24 and the final --

25 JUDGE BONOMY: And I understand urgent efforts being made to get

1 an understanding of that statement on the part of the Defence. Is that

2 right, Mr. Ackerman?

3 MR. ACKERMAN: Well, Your Honour, I don't know how it got into a

4 five-page statement. I've got one, two, three, four, five, six, seven,

5 eight, a little over eight pages.

6 MS. CARTER: Respectfully, Your Honour, when you said the second

7 statement, I thought you were referring the second statement that's part

8 of the 92 bis package.

9 JUDGE BONOMY: No, no.

10 MS. CARTER: He is speaking to the Belgrade statement, and he is

11 correct. It ends up being and ERN range from K0532529 through 45.

12 JUDGE BONOMY: Jargon again, Ms. Carter. Just the number of

13 pages, please. I'm a simple-minded person.

14 MS. CARTER: It is eight pages of text, Your Honour. It is double

15 that, but it just ends up being a stamp on it without any material on it.

16 JUDGE BONOMY: I understand efforts were made to get a rapid

17 translation of this. You can only do your best, I'm not suggesting

18 otherwise, but I'm trying to advance a compromise here which would involve

19 the witness being examined today and, if possible, cross-examined

20 tomorrow, and then proceeding to the examination-in-chief of the next

21 witness, that's Shefqet Zogaj on the basis that that cross-examination

22 could not be undertaken at all at this stage and would be postponed until

23 a suitable opportunity and it would be for the Defence to advise the court

24 of the date of that, since I understand we're talking about a journalist

25 writing a number of books in Albanian, which it would take some time to

1 digest through translation.

2 Now, can we try that? And I appreciate, we may not achieve the

3 objective because of the difficulty of getting a quick translation of the

4 statement, but bear in mind -- or we bear in mind that the accused here

5 and many of the counsel here will be able to read that statement in the

6 form in which they have it. And therefore, I was hoping that all -- by

7 acting together you might be in a position to cross-examine tomorrow.

8 MR. ACKERMAN: Your Honour, if -- if CLSS moves at their fastest

9 pace, it will be available sometime tomorrow.

10 JUDGE BONOMY: Yeah.

11 MR. ACKERMAN: Probably after we've finished, but you do make a

12 good suggestion otherwise. It may be that I have colleagues here who read

13 this language very well who will conduct a cross-examination that I would

14 eventually be satisfied with, having read this statement later --

15 JUDGE BONOMY: That's the suggestion --

16 MR. ACKERMAN: That may work and it may be that I won't even ask

17 that this person be brought back or I won't have any additional cross.

18 JUDGE BONOMY: We appreciate that the position is different with

19 the journalist. So that's how we'll deal with the questions of the

20 evidence.

21 Now, I want to do two other things since Mr. Hannis is here. Just

22 give me a moment. There are two related motions before the Trial Chamber.

23 The most recent of these is a joint Defence motion to compel Rule 68

24 disclosure, and that -- that motion flows from an order the Trial Chamber

25 made on the 15th of August which was seen at the time as -- it was seen at

1 the time as a rather technical exercise because it granted certain

2 protective measures to material which was being disclosed to the

3 Prosecution under Rule 70 and which the Prosecution sought to disclose to

4 the Defence. And the assumption -- not just the assumption, the declared

5 position of the Prosecution was that they had been authorised to disclose

6 it to the Defence as long as this protection was granted by the Court.

7 And the subsequent motion has now come in because the material has not

8 been disclosed.

9 Now, before we get involved in the bureaucratic exercise of going

10 through, waiting for a response, writing a decision, can you help us,

11 Mr. Hannis, on the current situation?

12 MR. HANNIS: We have disclosed that material today, Your Honour.

13 JUDGE BONOMY: Oh, thank you very much.

14 The second matter related to that was -- I'm sorry, Mr. Visnjic.

15 MR. VISNJIC: [Interpretation] Your Honour, I don't know, I mean

16 what Mr. Hannis meant, but this material that was disclosed to us today

17 was in actual fact disclosed to us on earlier occasions, several earlier

18 occasions. What we got today is actually a copy of material that was

19 previously disclosed to us by the Prosecution. What we expect to receive

20 from them is material that hasn't been disclosed to us to this day, and

21 they were supposed to ask the relevant governments for that. I'm not

22 going to give the names of the witnesses to whom this applies, but

23 obviously we are asked for even more than originally requested. And also,

24 we would like to have direct communication with the OTP in this respect.

25 However, it is my understanding that the material disclosed to us today is

1 certainly not what we were expecting to receive.

2 JUDGE BONOMY: Well, in case of any confusion, though, in your

3 mind, Mr. Visnjic, the other matter I was about to raise was your motion

4 to exclude the testimony of witnesses for failure to comply with

5 disclosure obligations. Now, I suspect that that's what you're addressing

6 at the moment -- it's not what you're addressing?

7 MR. VISNJIC: [Interpretation] Inter alia I'm talking about that,

8 too, because in addition to those witnesses -- I mean, I'm expecting some

9 more material pertaining to other things. But inter alia, that is

10 included in what I said a few moments ago.

11 JUDGE BONOMY: Now, Mr. Hannis, can you help me any further on

12 this?

13 MR. HANNIS: Well, I'm not sure. Maybe I have to sit and talk

14 directly with Mr. Visnjic, but what we disclosed today, it is material

15 that the original three had been disclosed previously. What we had been

16 waiting before was permission from the Prosecution to disclose that same

17 material to the three new accused in this case. We got that permission,

18 and today we disclosed that to them. But to try and avoid confusion, even

19 though there was some duplication, we disclosed everything to everybody,

20 even though the original MOS defendants had received it.

21 JUDGE BONOMY: So that motion, that particular motion, was

22 confined to giving authority so that you could disclose to the third --

23 the fourth, fifth, and sixth accused what had already been disclosed to

24 the first, second, and third accused?

25 MR. HANNIS: I believe that's correct.

1 JUDGE BONOMY: All right. Well, the separate matter then is

2 the -- the motion to exclude the testimony of certain witnesses for

3 failure to comply with disclosure obligations, and that motion includes

4 among its averments that on the 17th of August, 2006, counsel for General

5 Ojdanic, that's Mr. Visnjic, was informed by - and that's the country in

6 question - that it had not yet received a formal request from the OTP for

7 the testimony of that witness.

8 Now, have -- have matters moved on at all since then?

9 MR. HANNIS: They have, Your Honour. I have to talk a little bit

10 about procedure in connection with this. This is one that initially we

11 had a delay in putting names on our witness list because we were trying to

12 get privilege from provider. We did that. Then we had to request the

13 opportunity to interview those individuals, which was done prior to the

14 17th of August. At that time, then we sent our draft, former request,

15 because we were asked to proceed in that fashion so we can be advised

16 whether there were any problems with our request. Today -- yesterday, the

17 formal request went out, I contacted the provider's representative today

18 to try and get a timetable on how long it would be before we can get

19 approval. I was told three weeks as an optimistic --

20 JUDGE BONOMY: I'm conscious that Mr. Fila might think we are

21 being unduly pre-emptory in our approach to matters, but we are not

22 prepared to allow this sort of situation to drift indefinitely. And it

23 may be that if the matter is to be addressed formally by the Trial

24 Chamber, the state in question should be given an opportunity of

25 responding to this motion. Or are you content, Mr. Hannis, that you can

1 give the Trial Chamber all the information it will require to make a

2 decision on the motion?

3 MR. HANNIS: I think I can provide you that information,

4 Your Honour, and I think I have crossed all the biggest hurdles as of this

5 day.

6 JUDGE BONOMY: All right.

7 Well, Mr. Visnjic, if we decide to postpone our decision on this

8 motion for three weeks on the basis that you understand we are anxious to

9 make a final decision about this so that everyone knows where they stand,

10 is that acceptable to you?

11 MR. VISNJIC: [Interpretation] Your Honour, I'm afraid that with

12 regard to this particular matter that we've just discussed there is yet

13 additional documentation on our side, and I would like to ask you for a

14 shorter deadline, a day or two. I would like to submit that to you. This

15 is our own correspondence with some of these states. So could you then

16 please rule on delaying your own decision with regard to our original

17 request. So could we say do this by Monday at the latest? Can I submit

18 to you our entire correspondence that we had with regard to the provision

19 of documents with individual states and then you will see what the

20 situation is. And this has to do with the explanation just provided to

21 you by Mr. Hannis. Just give me three days. I agree in principle, if you

22 accept our additional documentation that I would like to provide to you.

23 JUDGE BONOMY: We have absolutely no problem accepting your

24 additional documentation on a matter like this. All I'm wanting to be

25 clear about is that if we give an indication that we're anxious to reach a

1 final decision, a definitive decision, but feel that three weeks is not an

2 unreasonable time in all the circumstances to allow Mr. Hannis, in view of

3 all that's happened, then if you give us that indication we can file this

4 for the moment and make our decision after he has had his three weeks.

5 MR. VISNJIC: [Interpretation] I kindly ask you to wait with your

6 decision -- I mean giving him three weeks. Do not grant him that before

7 you get our documents. I think I've been very specific now.

8 JUDGE BONOMY: All right. So you want to file more material by

9 Monday?

10 MR. VISNJIC: [Interpretation] That's right.

11 JUDGE BONOMY: Well, you proceed to do that. We will not make any

12 decision on this until then.

13 MR. VISNJIC: [Interpretation] Thank you.

14 [Trial Chamber and legal officer confer].

15 JUDGE BONOMY: Now, Mr. Hannis, I think that completes a need for

16 your presence and can we turn to Ms. Carter and the witness Berisha --

17 MR. HANNIS: Mr. Marcussen's --

18 JUDGE BONOMY: Oh, sorry, yes, of course, Mr. Marcussen.

19 MR. HANNIS: Thank you.

20 MR. STAMP: And while we're waiting for the witness to go, there's

21 perhaps another ancillary matter I could raise. It's just to put

22 something on the record. When the witness has testified there is an issue

23 in respect to the transcript pages and I think Mr. Hannis had sought to

24 indicate to the Court what pages the Prosecution wanted included in

25 evidence, but you had asked that the matter be discussed with the Defence

1 first. That has been done and it has been agreed with Mr. Ackerman, who

2 was moving for the entry of certain pages. It has been agreed that in

3 respect to the Prosecution the pages from the transcript are 1925 to 1933,

4 1940 to 1945, and 2032 to 2035 are to be included as evidence as extracts

5 of the transcript from him testimony. Thank you very much, Your Honour.

6 JUDGE BONOMY: [Microphone not activated]

7 THE INTERPRETER: Microphone, please.

8 MR. STAMP: No, no, in addition to what Mr. Ackerman had asked to

9 be -- to be admitted. He had asked for 1928 to 32. We were basically

10 asking for three pages before that as well, and one page after, to put it

11 in context. He had asked for 1936 to 1931. He had for 1940 to 1942. We

12 are asking it be 1940 to 1945. He had asked for page 2000, page 2045,

13 page 2018, and page 2026. In respect to the last one we are asking in

14 addition to page 2026 that page 2032 to 35 also be included. Thank you

15 very much, Your Honour.

16 JUDGE BONOMY: Thank you, Mr. Stamp.

17 I take it your silence means you have nothing to add,

18 Mr. Ackerman? Thank you.

19 [The witness entered court]

20 JUDGE BONOMY: Good afternoon, Mr. Berisha.

21 THE WITNESS: [Interpretation] Good afternoon.

22 JUDGE BONOMY: [Previous translation continues] ... yesterday

23 when you were being cross-examined by Mr. Bakrac, and we will resume that

24 cross-examination now. I simply have to remind you that the solemn

25 declaration to tell the truth which you took at the beginning of your

1 evidence will continue to apply to that evidence today.

2 Mr. Bakrac.

3 MR. BAKRAC: [Interpretation] Thank you, Your Honour.

4 WITNESS: HALIT BERISHA [Resumed]

5 [Witness answered through interpreter]

6 Cross-examination by Mr. Bakrac: [Continued]

7 Q. Mr. Berisha, yesterday we interrupted our cross-examination when

8 we were dealing with a particular topic -- or rather, something that

9 happened on the 28th of March, 1999. Now I shall slowly -- well,

10 actually, this has to do with the minaret of the mosque in Suva Reka. You

11 confirmed to me - and once again I want to have the right context for my

12 next questions. I'm going to read out part of your statement dated the

13 17th of August, 2001. I'm going to read about what you said then.

14 "On the 28th of March around 1150 in the morning I heard an

15 explosion and I saw the minaret destroyed. I rang a relative who lived

16 near the mosque, who stated that the minaret had been blown up by the

17 Serbs. That was on Bajram day and normally the mosque would have been

18 full of Albanian people."

19 And then you move on to 6.00 that evening. Another villager

20 talking about another story.

21 Later on at the Milosevic trial when you were cross-examined by

22 Mr. Milosevic the question was as follows --

23 THE INTERPRETER: Interpreter's note, could we please have a

24 reference, Mr. Bakrac?

25 MR. BAKRAC: [Interpretation]

1 Q. You say that you heard a loud explosion and -- I apologise for the

2 transcript. The accused Milosevic is asking --

3 THE INTERPRETER: Could we please have a reference to the

4 Milosevic transcript page?

5 MR. BAKRAC: [Interpretation].

6 Q. You heard that the minaret was destroyed at the mosque. Is that

7 right? The page is 7456, lines 10, 11, 12, and 13.

8 "A. Yes, on the 28th of March, 1999, sometime at around 1155

9 we heard a great explosion. And when we watched, looked at the minaret

10 which is about 300 metres away, we saw that the minaret had gone.

11 Meanwhile, in that five or six minutes' period on the road that leads

12 towards Pristina, we saw a camouflage vehicle going towards Birac, which

13 is 3 kilometres from Suva Reka where army forces were stationed. We saw

14 that the minaret of the mosque in Suva Reka had been destroyed. That was

15 the Bajram holiday which is a festival for Albanian Muslims."

16 Then you move on to another topic. So this has to do with the

17 very same incident. That is your second statement in which you made no

18 reference to what you said yesterday during the direct examination by the

19 Prosecution. When we checked the transcript, I will show you that

20 actually yesterday you said two completely different things as well. The

21 Prosecutor asked: [In English] "Did they tell you who they -- had they

22 seen what had caused the explosion?"

23 [Interpretation] Your answer was as follows: [In English] "There

24 is a family, they are called Elshani, and they live very close to the

25 mosque and they had seen the explosion and the collapse of the minaret.

1 Fortunately, it did not fall on to their house, it fell on the other side,

2 so it did not cause any damage to their house. At that time, they had

3 seen a vehicle of the army, a Gazik it's called. It was a red vehicle.

4 That was the only car that moved at that time. It went in the direction

5 of Birac and it was a military vehicle."

6 [Interpretation] In response to my question on the same day, but

7 just a few minutes later you gave yet a fourth version of the same event

8 and you said that your neighbours told you that they had seen this vehicle

9 parked in front of the mosque.

10 I don't know, Mr. Berisha, whether you understood that you are

11 under oath, both when you're answering questions put by the Prosecution

12 and the Defence. Could you please be so kind as to tell me which one of

13 the four versions is correct?

14 JUDGE BONOMY: Mr. Bakrac, that is an impossible question to

15 answer. They could well all be consistent with each other, you know.

16 They may be incomplete. You have to take particular statements the

17 witness has said and ask him whether it's true or not and build up a basis

18 for saying that he's being inconsistent. You can't throw these four

19 versions at him and expect him to give you an answer to the question

20 you've just asked.

21 Pick out two simple statements that you say are inconsistent with

22 each other and ask him to explain it if there is an inconsistency.

23 MR. BAKRAC: [Interpretation] No -- yes, Your Honour. I'm going to

24 ask him whether he stands by his claim made to the Prosecution during the

25 examination-in-chief that this vehicle that they saw by the mosque was the

1 only vehicle that was moving at the time.

2 THE WITNESS: [Interpretation] That's correct. Only one vehicle

3 was there at that time that went up in the direction of Birac.

4 MR. BAKRAC: [Interpretation]

5 Q. Thank you, Mr. Berisha. That's what we've been trying to hear

6 from you since last night. Could you please be so kind as to tell us now,

7 since you actually saw this vehicle and you said it was camouflaged, could

8 you describe it for us?

9 A. This vehicle Gazik make of Russian manufacture had camouflage

10 green colour. I did not say it was red. It had nuances of the green

11 colour.

12 Q. So it had different shades of green?

13 A. It was camouflage with green pattern.

14 Q. Mr. -- Mr. Berisha, what would you say if I put it to you that the

15 Army of Yugoslavia never had, not at that time either, a vehicle called

16 Gazik or Gaz or any such vehicle that you described?

17 A. I have seen such vehicles even earlier, the Gazik-type vehicles.

18 This is what we called them.

19 Q. But they were not military vehicles, right?

20 A. They were military vehicles, yes.

21 Q. And you saw them before the war, camouflage --

22 camouflage-coloured; right?

23 A. In 1998/1999.

24 Q. Mr. Berisha, do you perhaps know -- well, you heard the explosion,

25 you saw the minaret fall. Do you know how the minaret was blown up? Do

1 you have any knowledge about that?

2 A. As I said, I was in the courtyard, and at that moment we heard the

3 explosion and we could no longer see the minaret. And now, after we

4 reconstructed the minaret, I can still see it from my courtyard.

5 Q. Just one more question with regard to this particular topic.

6 Mr. Berisha, you said that on that day, Bajram day, the mosque was empty.

7 Is there otherwise a janitor or some other person who takes care of the

8 mosque?

9 A. It was completely empty, and it no longer had a janitor.

10 Q. Mr. Berisha, now I am going to move on to my last topic very

11 briefly. When was it that you returned to Suva Reka?

12 A. I returned on 23rd of June at 8.00 in the morning. I travelled

13 throughout the night. So I arrived on the 23rd of June at 8.00 in the

14 morning, 1999.

15 Q. And when did you first enter the Municipal Assembly of Suva Reka?

16 A. I became a co-chairman with the administrator on the 8th of

17 October, 1999, but as a citizen I became member of the municipality even

18 before this date. The 8th October is the date when the administrator

19 designated my office.

20 Q. Yes, Mr. Berisha, but you didn't understand me. I'm asking you

21 when you first physically walked into the building of the municipality,

22 not when you held a particular office.

23 A. I don't remember the date when I entered physically, but it was

24 sometime in July. I don't remember the date, as I said. So up until July

25 I did not enter physically the offices in the municipal building.

1 Q. Oh, July. And the municipality building was held by UNMIK. Is

2 that right?

3 A. No. The municipality building right after the war was held by a

4 temporary government, provisional government. It did not belong to UNMIK

5 yet, but I wasn't there at that time.

6 Q. So there was a provisional government and you were not there at

7 the time, and when you came -- and then when you came there sometime in

8 July after the provisional government, you found some papers in drawers.

9 Did I understand you correctly? Did I understand your testimony

10 correctly, the testimony you gave yesterday? These were papers from the

11 Serb government that no one touched, the provisional government, UNMIK, no

12 one by the month of July; is that what you're trying to tell us?

13 A. On 8th of October, 1999, I was given the keys to the office by the

14 administrator. Stanislav Andjelkovic, the chairman of the Executive

15 Council of that government used to work in that office. As to whether

16 someone entered that office before me, that I don't know.

17 Q. And since you got these keys and found these things, did you take

18 an inventory of the things that you found there by way of a commission or

19 whatever, or did you just take them and put them away, as you said

20 yesterday?

21 A. I simply took these documents, went through them. Those that I

22 thought I might need, I took them with me and they were in my possession.

23 And in the meantime, I was able to submit them to the archives of the

24 Suhareke municipality. I have the originals at home, of the documents, I

25 mean, that I presented here before you, while I handed over the copies.

1 Q. Yes, precisely. Yes. That's what I asked you about. Thank you.

2 MR. BAKRAC: [Interpretation] No further questions, Your Honour.

3 JUDGE BONOMY: Thank you, Mr. Bakrac.

4 Mr. Lukic.

5 MR. LUKIC: Thank you, Your Honour. I do have some questions, and

6 I hope that it's not menacing threat today after all these colleagues. I

7 will try to cut it short as much as possible.

8 Cross-examination by Mr. Lukic:

9 Q. [Interpretation] Good afternoon, Mr. Berisha. We'll briefly go

10 back to page 30, line 9, concerning your response where you said that on

11 the 8th of October, 1999, you were given the keys to the -- for the

12 administrator, for your office. Is it correct that up until that day -

13 and that is since June until the 8th of October - these offices were used

14 by the PDK led by Hashim Thaqi, at least that's what is stated in the OSCE

15 Mission to Kosovo report.

16 A. I don't know if there was someone in those offices; however, the

17 preparations to take up office and the post of the co-chairman of the

18 administrative board, it was a period of a month and a half regular

19 contacts with the UNMIK administrator appointed for Suhareke. He

20 confirmed on the 6th of October that I had to report to the municipality

21 building on the 8th of October to assume the post. And on this date he

22 gave me the keys to the office --

23 JUDGE BONOMY: You've answered the question in the first few

24 words. Just concentrate on what's being asked of you and confine the

25 answer to that.

1 Mr. Lukic.

2 MR. LUKIC: Thank you, Your Honour.

3 Q. [Interpretation] Mr. Berisha, do you have in front of you your

4 statement in Albanian and do you need to have it to be able to refer to

5 it?

6 A. I don't have it, no.

7 Q. Would you like to have it?

8 A. Yes, I would.

9 Q. In the Albanian this is page 2, paragraph 1, and the same goes for

10 the other two versions. You mention there the murder of the Berisha

11 family. I wanted to tell you straight away that we are not going to

12 dispute what you stated concerning that; we just wanted some clarification

13 from you, if possible. Do you know who participated in these murders?

14 A. At that time I didn't know, but I know now. Only when the

15 survivors of this massacre were able to tell us. I spoke with my brother

16 on the phone because I was not able to go to the petrol station. He was

17 telling me that a massacre was being committed at the shopping centre, at

18 the cafeteria called Kalebrija [phoen].

19 Q. Could you tell us whether you were able to find out if some people

20 from Suhareke participated in the murders?

21 A. I can tell you that we learned now because I have the judgement of

22 the war crimes court of Serbia, because only one of the perpetrators was

23 not from Suhareke, he was from Nish, and the others were from Suhareke,

24 Milorad Nisavic from Petkovic and Trajkovic families, I know all of them.

25 And the Bosnian -- his name was Ramiz Papic or something like that. Now

1 we've learned all the names but at that time we didn't know who committed

2 the crime.

3 Q. Thank you.

4 A. You're welcome.

5 Q. Apart from the members of your family, was anyone else killed in

6 the neighbourhood?

7 A. 49, including my brother who was killed later, are from the

8 Berisha family from my neighbourhood. And there are others as well who

9 were killed on the road to Rastane. This is what we call the road.

10 Q. May we conclude that nobody from the surrounding houses, the

11 houses which are adjacent to your relatives' house and immediately close

12 by, that no one was killed from those houses?

13 A. The others were not killed. There were others as well there, but

14 they were not killed. They were hiding in the basements of their houses,

15 while out of the 49 that I mentioned 20 are less than 18 years old and

16 then Hatixha [phoen] was 90 years old and Iri [phoen] who was pregnant and

17 there was a 1-year-old child. I have the photographs of Hatixha here if

18 you want to see them.

19 Q. I believe the Prosecutor will seek to tender some photographs

20 through another witness who is to come here after you.

21 JUDGE BONOMY: Mr. Lukic.

22 MR. LUKIC: Yes.

23 JUDGE BONOMY: Can you clarify something for me.

24 MR. LUKIC: Yes.

25 JUDGE BONOMY: You say -- is it the case that there is a

1 judgement --

2 MR. LUKIC: I think that there is an indictment at this point of

3 time, Your Honour.

4 JUDGE BONOMY: Not a judgement?

5 MR. LUKIC: Not a judgement --

6 JUDGE BONOMY: -- the witness --

7 MR. LUKIC: That's what I understand. Maybe the witness knows

8 something else.

9 JUDGE BONOMY: And are the people indicted members of what can

10 properly be described as the forces of the FRY or Serbia?

11 [Defence counsel confer].

12 MR. LUKIC: Some of the individuals were, but I'm not sure

13 because I don't have it with me. We are waiting, actually, Your Honour,

14 for that indictment. Mr. Aleksic promised yesterday that we will have it

15 today but we haven't received it yet.

16 JUDGE BONOMY: Mr. Berisha, the people you mentioned, Milorad

17 Nisavic, was he a member of any organisation?

18 THE WITNESS: [Interpretation] He was chief of what we called Odba

19 [phoen] the State Security Service in Suhareke. So he was chief of the

20 state security office in Suhareke. I knew him personally.

21 JUDGE BONOMY: And you then said -- or at least the transcript

22 says from Petkovic and Trajkovic families. Now, who else are you

23 referring to there?

24 THE WITNESS: [Interpretation] There are two brothers, Zoran and

25 Miki Petkovic. Miki is a nickname of one of the brothers; I don't know

1 his name. They were brought up in Suhareke. We know them from their

2 childhoods. I know their parents. His brother was a technician --

3 JUDGE BONOMY: I'd rather not -- [Previous translation

4 continues] ... rather than their fathers.

5 THE WITNESS: [Interpretation] -- have the indictment with me.

6 JUDGE BONOMY: Were they members of any organisation?

7 THE WITNESS: [Interpretation] No. They were just uniformed. I

8 saw Miki wearing a uniform. I didn't see Zoran with uniform.

9 JUDGE BONOMY: What kind of uniform?

10 THE WITNESS: [Interpretation] Miki had a blue uniform, like the

11 police uniform, the uniform with the blue nuances. Miki Petkovic. As I

12 said, I don't know his full name, first name.

13 JUDGE BONOMY: [Previous translation continues] ... matters to be

14 explored further, no doubt the Prosecution will take it up with you.

15 Mr. Lukic.

16 MR. LUKIC: Thank you, Your Honour.

17 Q. [Interpretation] I'd like to conclude this topic, Mr. Berisha, and

18 I will try and ask you to focus on the period before the 24th of March,

19 1999, a few days before that date. As a former municipal president and a

20 resident of Suva Reka, were you familiar with the situation in and around

21 the town at that time?

22 A. Yes, I know it very well. First of all I would like to say that

23 on the 22nd of March, in a shop a Serb was killed on the 22nd of March.

24 The Serb was located at the old post office. It's a tall building, and

25 the street behind the post office, 11 people were killed, one female and

1 ten others. They were in their own houses and they had nothing to do with

2 the assassination attempt. In the meantime, the situation was very bad.

3 It was very difficult to go out in the street even before this date. My

4 house, as I said yesterday, is on the other side of the road and it was

5 really difficult for me to go on the other side. I didn't dare and nobody

6 dared because the Serb police and military forces were moving along the

7 main street. And some others that I mentioned yesterday, they were moving

8 along that road as well, the ones with black uniforms and with the red

9 bandannas. They were all linked to each other, and they were moving along

10 the streets in Pinzgauers and in great speed, not a normal speed for that

11 street. So whoever got caught, there was no way that he or she could

12 escape, and these were all events that occurred even before the 25th and

13 26th of March.

14 Q. Just one question --

15 MR. LUKIC: Sorry.

16 JUDGE BONOMY: What, Mr. Berisha, is the link between the Serb who

17 was killed on the 22nd of March and the 11 people that were killed?

18 THE WITNESS: [Interpretation] The 11 persons that were killed had

19 no connection whatsoever with the killing of the Serb. They were killed

20 in their own house. This woman and ten other persons.

21 JUDGE BONOMY: Thank you.

22 Well, we'll adjourn there for the break and we'll resume just

23 after five past 4.00.

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

25 --- On resuming at 4.11 p.m.

1 JUDGE BONOMY: Mr. Bakrac, I have from CLSS a memo following my

2 request that they check the translation yesterday, and it reports as

3 follows: "We confirm that the interpretation of the queried expression

4 was inaccurate and that the English transcript page 3615, lines 14 to 16,

5 should be corrected to read as follows: 'At that time, they had seen a

6 vehicle of the army a Gazika in camouflage colours.'"

7 So the word "red" was inaccurately added to that transcript.

8 MR. BAKRAC: [Interpretation] Thank you, Your Honour.

9 JUDGE BONOMY: That will be filed to correct the record.

10 Mr. Lukic, please continue.

11 MR. LUKIC: [Interpretation] Thank you, Your Honour.

12 Q. Mr. Berisha, may we continue?

13 A. Yes.

14 Q. I would like to go back to those 11 people who were killed after

15 Lazic Bogdan had been killed. Concerning that incident, was that a

16 vendetta?

17 A. Yes, absolutely. It was a vendetta because to this day we don't

18 know where their bodies are. This was a macabre killing of civilians who

19 were in no way involved with that killing.

20 Q. Thank you?

21 MR. LUKIC: If I can ask only for one correction, only vendetta is

22 translated but not blood feuding. Thanks.

23 JUDGE BONOMY: Sorry, I don't know what you mean. Are you saying

24 vendetta wasn't -- you didn't use the word vendetta?

25 MR. LUKIC: I did, both words --

1 JUDGE BONOMY: Oh, you used both?

2 MR. LUKIC: And it has a specific meaning in that part of the

3 world.

4 JUDGE BONOMY: So your question was?

5 MR. LUKIC: Whether it was vendetta and blood feuding.

6 JUDGE BONOMY: Okay. Thank you.

7 MR. LUKIC: You're welcome.

8 Q. [Interpretation] I just wanted to clarify something. As for

9 Bogdan Lazic, you told us he was killed in Suva Reka. Did you know that

10 the killing took place at around noon?

11 A. No, because my house is far from the shop where he worked, but the

12 next day we learned that he was killed.

13 Q. Thank you.

14 A. You're welcome.

15 Q. As for the members of your family, what was their relationship

16 with the Nisics [as interpreted], who were owners of the hotel? It is

17 well-known that people from the OSCE moved from the hotel to stay with

18 your relatives.

19 A. I would think that they could have been -- that could have been

20 one of the reasons because OSCE stayed there for a time, but they changed

21 their offices because the citizens would not go to their offices because

22 they knew that Misko worked for the state security. That's why the OSCE

23 left the hotel and went to a private home.

24 MR. LUKIC: Again, one intervention regarding the transcript, and

25 probably it would be corrected later on, but the correct last name of this

1 person is Nisavic and the witness can confirm.

2 THE WITNESS: [Interpretation] Yes, Nisavic.

3 JUDGE BONOMY: Does your answer mean you accept that the OSCE

4 moved from a hotel, to which people were reluctant to go, to homes of

5 members of the Berisha family?

6 THE WITNESS: [Interpretation] Yes, that's correct.

7 JUDGE BONOMY: Thank you.

8 MR. LUKIC: [Interpretation]

9 Q. Were there rumours in the town as to who or what may have been the

10 reason for the killing of some members of your family?

11 A. To this day we ask ourselves, because these families that were

12 killed were honourable families, families who worked hard and did not have

13 any conflict with anybody. All the families who were killed on the 26th

14 of March, they were honest and hard-working families. The family of Sahit

15 Berisha, where Musli was killed with 16 members of his family, they were

16 an agricultural family, they were farmers. And one of them, Avdi and his

17 wife, were in the clinic, and the others were all children. They had no

18 conflict with anybody. Even the other families, they did not have any

19 conflict with anyone. We could say something about the family of Vesel

20 Berisha. There are two Vesel Berishas. There is Vesel Ramadan Berisha

21 and Vesel Shaban Berisha. These families were killed. One of them was a

22 professor at the university of Pristina. He taught at the civil

23 engineering faculty. He was killed with his wife and two little children.

24 Together with his sister, mother, and father. Ten members of that family

25 were killed. Only two women survived. One is married in Suhareke, the

1 other is married elsewhere. But as I said, all the families that were

2 there, I don't know what the order was about this massacre, the killing,

3 and who gave this order to put the whole family inside the cafeteria and

4 explode the cafeteria -- they used detonators and stuff.

5 That cafeteria is closed now. I don't know who that order

6 came from. Those people behind you must know where this order came from.

7 They have to explain. Why did they order this massacre? Well, mother

8 Hatixha as we call her, she was almost a hundred years old and she was

9 executed. And also Liri Berisha, who was pregnant, and there was an

10 additional crime to this. There was insult to injury. They were first

11 buried at Kroj i Popit and then exhumed and settle elsewhere. I don't

12 know why they did that because I would think they want to hide their

13 crime.

14 Q. Thank you, Mr. Berisha. I only tried to ask you whether at the

15 time there may have been any speculation as to the reason why your family

16 members had been killed, but judging by your answer am I free to conclude

17 that you have no knowledge of that?

18 A. I don't think there were speculations. My brother was executed

19 after the massacre happened just because he was working at the petrol

20 station and because he was a witness; that was the reason, and he saw the

21 crime. And he was executed between 5.00 and 6.00 p.m.

22 JUDGE BONOMY: Mr. Lukic, again can you help me. Is the burial

23 site that was referred to just now at Kroj i Popit, is that different from

24 the firing range in Prizren?

25 MR. LUKIC: I cannot answer that question I'm afraid.

1 JUDGE BONOMY: Thank you.

2 MR. LUKIC: There is always a confusion with these bilingual

3 names. So we'll check it and provide you the answer as soon as possible

4 or maybe the Prosecution can help us.

5 JUDGE BONOMY: Sorry, sorry, yes, Mr. Marcussen.

6 MR. MARCUSSEN: No, it was just if I could assist Your Honour.

7 It's our understanding that it is the same location and the next witness

8 will be giving more evidence on that.

9 JUDGE BONOMY: Thank you.

10 Carry on, please, Mr. Lukic.

11 MR. LUKIC: Thank you.

12 Q. [Interpretation] Mr. Berisha, as someone who was familiar with the

13 situation in Suva Reka, did you know that as of the 25th of March, 1999,

14 there were skirmishes or conflicts between the KLA and the Serb forces?

15 And I have in mind the area west to Suva Reka, between Velika Krusa and

16 Rastani, that entire area was where the conflicts took place.

17 A. Yes, in the centre of Suhareke there were no KLA soldiers, while 2

18 or 3 kilometres from Suhareke there were some. They were in Rastane,

19 Doberdolan but not in the centre of Suhareke.

20 Q. Did you know that in that area there were some 1500 members of the

21 KLA?

22 A. No, because I was not in that area. I was on the other side of

23 town.

24 Q. Thank you. In paragraph -- in the Albanian page 3, paragraph 2;

25 in the English, page 2, paragraph 4; and in the B/C/S, page 2, paragraph

1 4, you state that they were shooting at the Albanians in the town. Do you

2 know whether anyone was killed?

3 A. Yes. On the 25th of March, I said that a member from our family

4 that lived on the other side of the street, they went out, and on that

5 street brothers Hoti were killed, someone from the family Elshani, also

6 someone named Suka. So 34 people were killed that day.

7 Q. That was actually the day when the fighting broke out between the

8 KLA and the Serb forces. Isn't that so?

9 A. No. The KLA was 3 kilometres away. There were no KLA in the town

10 itself. There were only civilians in their own homes, and they were

11 killed. Nebil Elshani [phoen] was killed in his own home, while the

12 others that I mentioned were killed in the middle of town. The others

13 were killed on the street, while the KLA forces were 3 kilometres away.

14 There were no other people, no military people except those civilians who

15 were in their own home.

16 THE INTERPRETER: Would the witness and counsel please wait for

17 translation --

18 THE WITNESS: [Interpretation] I stayed at home and I was taking

19 care of my family. There were 18 members of my family that I had to take

20 care of. I did not dare go out because I feared I would be killed. I

21 stayed at home. But on the 25th we left, we left and went towards a

22 river. The river is 500 metres from our home. We spent the day there, and

23 you know the whole story; I have explained it.

24 MR. LUKIC: [Interpretation]

25 Q. Thank you. In the Albanian page 3, paragraph 4; in the English,

1 page 2, last paragraph; in the B/C/S page 3, paragraph 2, you state that

2 on the 25th of March, 1999, around 6.30 a.m., between 20 and 30 members of

3 the Kuci family passed by your house. Did they come from the direction of

4 Rastani --

5 JUDGE BONOMY: Mr. Lukic, that was changed in the statement to

6 between 20 and 30 members of the family Berisha, Ramadan Berisha --

7 MR. LUKIC: Yes, Your Honour. Thank you.

8 Q. [Interpretation] Did they come from the direction of Rastani?

9 A. No. They crossed the main road. They live on the right side of

10 the Pristina-Prizren road, so they crossed the road and they came towards

11 the area where I lived, behind the municipality building. And there is

12 this lane, as I told you, that divides the Serbs from the Albanians. And

13 they left or went towards an area that is outside Suhareke.

14 MR. LUKIC: Give me one moment.

15 [Defence counsel confer]

16 MR. LUKIC: [Interpretation].

17 Q. Mr. Berisha, we could see from your statement that there was

18 looting and robbery in your town as well. Did you know that some people

19 were later arrested for these crimes?

20 A. On the 27th of March at around 4.00 p.m., on the road to Rastane

21 there were houses where the massacre happened from where the people were

22 taken --

23 JUDGE BONOMY: Can I interrupt you, please. The question is:

24 Did you know that some people were later arrested for looting and

25 robbery? Now, do you know that?

1 THE WITNESS: [Interpretation] Only one was arrested, Hamit

2 Berisha, and he was released later because he was arrested by mistake. He

3 was arrested on the 20th of May.

4 JUDGE BONOMY: Thank you.

5 MR. LUKIC: [Interpretation].

6 Q. Thank you, Mr. Berisha.

7 MR. LUKIC: [Interpretation] No further questions.

8 JUDGE BONOMY: Thank you, Mr. Lukic.

9 Mr. Marcussen.

10 MR. MARCUSSEN: Thank you, Your Honour.

11 Re-examination by Mr. Marcussen:

12 Q. Mr. Berisha, just a few issues. You were asked whether or not

13 anybody were killed -- anybody were killed -- any of your neighbours were

14 killed on the 26th of March, and then you later talked about a number of

15 killings that occurred on that day in Suva Reka. My question is: Is it a

16 correct understanding of your evidence that there were other killings than

17 the killing -- the big massacre of your relatives close to the petrol

18 station, though those killings were not in your immediate neighbourhood.

19 Is that what you're saying?

20 A. Yes, yes. There were killings on the 22nd of March, 25th of

21 March, 26th of March, and individual killings occurred up to the end of

22 the war. The total number of the civilians killed, according to the

23 statistics we have, it's 561 civilians. Of those, 176 civilians are

24 unidentified and 152 from the municipality of Suhareke are still not

25 found. Among those, 31 are from the Berisha family, people who have

1 disappeared. We have not found them yet.

2 Q. You say "statistics that we have," are you referring to anybody in

3 particular who have collected these -- made these statistics?

4 A. I work with some other people in the association for missing

5 persons and killed persons. And from the end of the war I joined this

6 association and I worked there with Mr. Hysni Berisha. We have the

7 statistics for the people who were killed in the commune in the

8 municipality of Suhareke. The association is called Spreshimi [phoen].

9 MR. MARCUSSEN: Your Honours, Hysni Berisha will be a witness

10 later in the trial, just so you are aware of that.

11 Q. Mr. Berisha, you were asked whether you were -- you were asked

12 about the people who are indicted before the Belgrade war crimes court.

13 You were asked if you knew what organisation they belonged to. You

14 explained that one of them was a policeman belonging to the state security

15 and another one you described as -- as wearing a police uniform. Do you

16 know whether any of the other accused belonged to -- were members of the

17 army or the police or any unit like that?

18 A. Mitrovic Radislav, from the indictment, I don't know him.

19 Radamovic Radojko, he was commander of the police station in Suhareke. I

20 knew him very well because he lived in Suhareke for a long time.

21 Jovanovic Nenad, I know him as well. He was the deputy police commander

22 in Suhareke police station. He was an active policeman. Cukaric Sladjan.

23 Nisavic Milorad, he worked at the state security. He was chief of the

24 office in Suhareke. I know him very well because during the time I served

25 as the chairman of the municipality in 1989/1991 he worked there and had

1 the same function. Petkovic Miroslav and Petkovic Zoran, they were

2 civilians before the war. One of them, Zoran, worked as a driver, while

3 Petkovic Miroslav for a time worked in the office of the health care, and

4 the person with a last name Papic, he was an active policeman as well.

5 JUDGE BONOMY: Mr. Berisha, what document were you reading from

6 just now?

7 THE WITNESS: [Interpretation] I'm reading these names from the

8 indictment issued by the office of the Prosecutor at the war crimes court

9 in Belgrade.

10 JUDGE BONOMY: Is that an exhibit, Mr. Marcussen?

11 MR. MARCUSSEN: It is not an exhibit, and obviously the witness

12 has a copy of the indictment. We also have a translation of the

13 indictment that we can offer to the Court if the Court is -- would find

14 that helpful.

15 JUDGE BONOMY: It doesn't interest you then?

16 MR. MARCUSSEN: We will be leading more evidence about the

17 identity of these people from other witnesses --

18 JUDGE BONOMY: All right.

19 MR. MARCUSSEN: -- Witness K83 who will come next week --

20 JUDGE BONOMY: All right thank you --

21 MR. MARCUSSEN: -- will provide more information on that.

22 Q. You were being asked whether there had been an incident of a

23 vendetta and a blood feud, and my learned colleague stated that that had a

24 specific meaning in the region. I don't know if it's being suggested that

25 these killings were the result of a vendetta or a feud, but just to cover

1 this, Mr. Berisha, the killings that occurred in March through May 1999 in

2 Suva Reka, have you any indications that they were a result of vendettas

3 and blood feuds?

4 A. I think it's act of revenge. There's no vendetta or blood feud

5 between the Serb and Albanian community; it's only revenge.

6 Q. Okay. So these are different concepts. What do you mean

7 by "revenge"?

8 A. Revenge, what I understand by this term is the following. For the

9 Serb that was killed in the shop, they killed 11 others, on the same day.

10 Q. And -- and so that is the revenge. And for the other killings

11 that occurred, was that also revenge? Is that -- is that what you are

12 saying?

13 A. I don't know if it's revenge, but we know who gave the orders to

14 commit all these crimes against the innocent civilians. This must have

15 been given by those who issue orders, and that follows a certain

16 hierarchy, institutions for all the killings that were committed in my

17 municipality, especially for the killings of members of Berisha family.

18 MR. MARCUSSEN: I think the Court will be making determinations

19 about -- I'm not going further into that.

20 JUDGE BONOMY: Mr. Bakrac.

21 MR. BAKRAC: [Interpretation] Your Honour, I was under an

22 impression that this witness wasn't called here to testify as regards all

23 the killings that happened in his municipality; therefore, he cannot be

24 asked these questions.

25 JUDGE BONOMY: Well, the answers have not advanced the

1 Prosecution's case, so you needn't be concerned about it.

2 MR. MARCUSSEN: I think we just need to clarify one last point,

3 and we'll need an exhibit for that. Could we see Exhibit 615, page 52,

4 please, it's the map of Suva Reka that we've seen earlier. I would need

5 the assistance of the usher, please, for just marking this. Now, can we

6 turn this one time clockwise and zoom in maybe two clicks. I think that's

7 fine. Let's leave it there.

8 Q. Mr. Berisha, you mentioned -- you asked about what direction the

9 20 to 30 members of the Berisha and Ramada Berisha families came from when

10 you saw them at your house. Could I ask you to mark on this map where the

11 families you mentioned lived?

12 A. Yes. This is the wine cellar here, and below this cellar, this is

13 the area where they lived, the apartments where they lived. There is a

14 long building here, and there is a passage that takes you to the main

15 road. So they passed through this passage, went to the main road, and

16 this is then a small lane that leads that area to my courtyard. So they

17 came to my courtyard and then to the river. This is the march -- the

18 route they made to arrive there.

19 Q. [Previous translation continues] ...

20 A. So this road here and the road that leads to Rastane is the road

21 where the massacre was committed.

22 MR. MARCUSSEN: This might be difficult to understand later on.

23 Let's --

24 Q. Could you just make a circle just broadly around the area where

25 they lived and I think that will do for the purpose that we need it.

1 A. It's here.

2 Q. Thank you very much.

3 MR. MARCUSSEN: Could we make that --

4 JUDGE BONOMY: Is it --

5 MR. MARCUSSEN: Sorry.

6 JUDGE BONOMY: The road to Rastane we've just --

7 MR. MARCUSSEN: I believe it's marked on the map.

8 JUDGE BONOMY: But which road is it? Is it the road with the

9 dotted lines on it, the grey road?

10 THE WITNESS: [Interpretation] The -- may I mark it?

11 MR. MARCUSSEN:

12 Q. Yeah --

13 A. This is the Rastane road.

14 JUDGE BONOMY: That is the brown colour, the thinner of the two

15 brown-coloured roads just near the junction of the two roads. Thank you.

16 MR. MARCUSSEN:

17 Q. Thank you --

18 A. Yes, that's the road to Rastane and the main road is here with

19 red.

20 MR. MARCUSSEN: It's marked at the end of that road. It cannot be

21 seen, we haven't zoomed in enough, but it should be indicated there with a

22 distance to the location.

23 Q. Thank you very much, Mr. Berisha.

24 MR. MARCUSSEN: I have no further questions for this witness,

25 Your Honour. Oh, but I would -- sorry. I would ask that this image be

1 made an exhibit, if you --

2 JUDGE BONOMY: Just a moment, though, what is it you're saying

3 can't be seen on it, the location of the massacre of the Berisha family?

4 MR. MARCUSSEN: The -- no. The circle on this map indicates the

5 area where the 20 to 30 members of the Berisha and Ramadan Berisha

6 families lived.

7 JUDGE BONOMY: I followed that. What is it you say cannot be seen

8 on the map?

9 MR. MARCUSSEN: Well, there are a number of additional lines and

10 dots and they may be without further markings difficult to understand. I

11 think the witness indicated what route --

12 JUDGE BONOMY: But you've just said: It's marked at the end of

13 the road. It cannot be seen, but we haven't zoomed in enough but it

14 should be indicated there with a distance to the location. What does that

15 mean?

16 MR. MARCUSSEN: That is -- at the road you described there's

17 marked on the map -- it's written -- well, I cannot see it we haven't

18 zoomed in enough, 18 or 20 kilometres to Rastani.

19 JUDGE BONOMY: I understand now. Thank you very much.

20 MR. MARCUSSEN: Did we get an exhibit number for this?

21 THE REGISTRAR: That will be IC41, Your Honours.

22 MR. MARCUSSEN: Thank you.

23 JUDGE BONOMY: Thank you.

24 [Trial Chamber confers]

25 MR. LUKIC: Your Honour ...

1 JUDGE BONOMY: Mr. Lukic, were you going to say something?

2 MR. LUKIC: Just one clarification. It seems now that there is 18

3 to 20 kilometres to Rastani and I established with the witness that it's

4 actually a suburb of Suva Reka and it's not on the map. We cannot see

5 either 20 or 18 on this map.

6 JUDGE BONOMY: Well, Mr. Berisha, are you -- you heard that

7 comment. How far was it from where you lived to Rastani?

8 THE WITNESS: [Interpretation] At the road from Suhareke to Rastane

9 is 3 kilometres and something, up to 3 and a half kilometres I would say.

10 JUDGE BONOMY: All right. Thank you.

11 Well, that completes your evidence. Thank you for coming to the

12 Tribunal to give it, and you're now free to leave.

13 THE WITNESS: [Interpretation] Thank you.

14 JUDGE BONOMY: Thank you.

15 MR. MARCUSSEN: Your Honours, Ms. Carter will take the next

16 witness.

17 [The witness withdrew]

18 JUDGE BONOMY: Is -- is there only one witness present?

19 MS. CARTER: That is correct, Your Honour.

20 JUDGE BONOMY: All right. And the witness will be?

21 MS. CARTER: The witness will be Ali Gjogaj.

22 JUDGE BONOMY: All right. Thank you.

23 MS. CARTER: And pursuant to the conversations that were being

24 held with Defence earlier, the translation that had been requested by

25 Mr. Ackerman, Ms. Grogan was kind enough to run those down and apparently

1 the translation has been made. We actually have hard copies ready for the

2 Defence teams in order to assist them in any sort of cross-examination.

3 JUDGE BONOMY: Thank you.

4 [The witness entered court]

5 JUDGE BONOMY: Good afternoon, Mr. Gjogaj.

6 THE WITNESS: [Interpretation] Good afternoon.

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

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

9 before you.

10 THE WITNESS: [Interpretation] I solemnly declare that I will speak

11 the truth, the whole truth, and nothing but the truth.

12 JUDGE BONOMY: Thank you. Please be seated.

13 Mr. Gjogaj, we know that you have been to this Tribunal before and

14 that you gave evidence in the trial of Slobodan Milosevic. We have a copy

15 of your evidence in that case. We also have copies of two statements that

16 you've given to the Office of the Prosecutor. So we know a lot of

17 material that you are able to give evidence about. The reason for you

18 being here today is so that counsel for the Prosecution and for the

19 various accused can ask you questions to either add to the material we

20 already have, to clarify things in it, or to challenge it. The important

21 thing for you is to concentrate on the question that each persons asks you

22 and try to restrict your answer to the point that the question relates to.

23 There's no point in repeating the things you've said before, unless you

24 have to, to make the matter clear. We already have that. What we want is

25 new or additional information. We want to know as much as we can and we

1 want to try to avoid going over the things that we already know. So

2 please concentrate on the particular questions that are asked. The first

3 person to ask questions of you will be for the Prosecution, Ms. Carter.

4 Ms. Carter.

5 MS. CARTER: Thank you, Your Honour. This witness is being

6 submitted before the Tribunal as a 92 bis (D) witness. His name is Ali

7 Gjogaj. We're requesting that his 92 bis package be accepted by the

8 Court. It is transcript with the e-court number of P --

9 JUDGE BONOMY: Let's -- we'll -- we don't need these details.

10 Just let's get on with the evidence and you'll give us the exhibit number,

11 no doubt, when we come to that little part of his evidence.

12 WITNESS: ALI GJOGAJ

13 [Witness answered through interpreter]

14 Examination by Ms. Carter:

15 Q. Mr. Gjogaj, when you came to the Tribunal yesterday for proofing,

16 did you have an opportunity to review all three statements that you have

17 given before the Tribunal?

18 A. Yes.

19 Q. And that review was done by having an interpreter read you out all

20 three statements at your request. Is that correct?

21 A. Yes.

22 Q. Were the statements that were read out to you true and accurate

23 copies of the statements that you have given before the ICTY?

24 A. Yes.

25 MS. CARTER: Your Honour --

1 JUDGE BONOMY: Should I have three statements?

2 MS. CARTER: Yes, Your Honour. As part of the 92 bis package

3 there are the two statements that we've been discussing quite extensively.

4 There's a third statement with an ERN, it's a single page, of K0226430,

5 the content is a single paragraph that's an addition to the first

6 statement that was taken on February 27th of 2000. And, Your Honour, as

7 these --

8 JUDGE BONOMY: Thank you.

9 MS. CARTER: As this is a 92 bis witness, we are asking for that

10 92 bis package under P2317 be tendered as well as the transcript under

11 2318, which includes also e-court number P00120, which are photos of an

12 artillery range that were submitted during the Milosevic case on page

13 7390, line 21.

14 JUDGE BONOMY: And are they legible?

15 MS. CARTER: The photographs?

16 JUDGE BONOMY: Yeah.

17 MS. CARTER: Yes, Your Honour.

18 Q. Sir, I would like to actually speak with you a bit about the

19 second statement that you had given that particularly relates to the

20 exhumation of a firing range. When you initially gave statements before

21 the Tribunal, you gave the first statement with regards to Pusto Selo.

22 You later gave a second statement with regards to that firing range, but I

23 want to set out a chronology. In regards to those events, which occurred

24 first, the excavation of the firing range or the excavation -- excuse me,

25 the Pusto Selo bodies?

1 A. The one at the firing range was the first.

2 Q. So that we can get an estimation in time, you indicated in that

3 statement a broad range when you believe that exhumation actually took

4 place. If we use the NATO bombings as a starting point, how long after

5 the NATO bombings had begun did you excavate that firing range?

6 A. Since I don't remember dates, I am not good with dates, I know

7 that it was in a week or two that we were told to exhume these bodies from

8 the firing range.

9 Q. I want to discuss with you about the nature of that -- the job

10 that you were asked to do. You indicated that you worked for a company

11 called Hygijena. Is that correct?

12 A. Yes.

13 Q. During your normal work day, what are the work hours that you are

14 on shift at that company?

15 A. An eight-hour shift usually.

16 Q. Is that eight-hour shift during what we would term a normal

17 business day, starting between 8.00 or 9.00 and going until 5.00 or 6.00?

18 A. Yes.

19 Q. When you worked for that company prior to the day that you were

20 asked to excavate this firing range, had you ever been called into work in

21 the middle of the night before?

22 A. On that day when we went to excavate the bodies, we were at work

23 but at around 8.00 or 9.00 my boss came together with two colleagues of

24 mine. He picked up -- us up in a Volkswagen Golf --

25 JUDGE BONOMY: Please remember what I said to you. Answer the

1 question you've been asked. Don't go over these matters. You were asked

2 a very specific question. Before you were asked to do this job, had you

3 ever been called in to work in the middle of the night?

4 THE WITNESS: [Interpretation] No. They collected us at around

5 8.00 in the evening.

6 MS. CARTER:

7 Q. Thank you, sir. Also with this company, was there any sort of

8 night shift or any workers that ever did work overnight?

9 A. No.

10 Q. So when your boss came to your home and brought you out to do this

11 exhumation, that would be an extraordinary day. Is that correct?

12 A. Yes, it was an extraordinary schedule.

13 Q. When your boss arrived at your home, can you describe for me how

14 he was dressed?

15 A. My boss had the clothes of the Yugoslav army.

16 Q. Okay. When did your boss start wearing the clothes of the

17 Yugoslav army?

18 A. He started wearing these clothes after the Serbs mobilised him.

19 Q. When was the mobilisation of the Serbs?

20 A. As I said, I'm not good with dates, but simply when the Serbian

21 army began to mobilise, that's when he put on his army clothes.

22 Q. Now I'm going to move through your statement actually to what is

23 going to be the English page 3 as well as the B/C/S page 3. In it you

24 describe a man on a small excavator as a man dressed in a green camouflage

25 uniform. Is that a similar or the same uniform that your boss showed up

1 at your house in?

2 A. The uniform was the same.

3 Q. Outside of your boss and this man who was on the small excavator,

4 were there any other men in a green camouflage uniform?

5 A. No.

6 Q. You've indicated throughout the statement that there were men in

7 blue camouflage uniforms that you identify as police. Is that correct?

8 A. Can you please repeat the question.

9 Q. You've indicated throughout your statement in regards to this

10 firing range that at the firing range you saw a number of men in blue

11 camouflage uniforms that you identify as police. Is that correct?

12 A. No.

13 Q. Did you see any police or anybody that you identify as police at

14 that firing range?

15 A. When we went at the firing range, the -- everything had already

16 been arranged. The police was there to protect us, and we started our

17 work. And before went there, the work had not been started yet.

18 Q. When you said that the police were there, what were the police

19 wearing?

20 A. It was the regular police.

21 Q. What do you mean by "regular police"?

22 A. It was kind of chequed -- I don't know how I've stated it in the

23 statement.

24 Q. Was it a solid uniform or did it have a pattern on it?

25 A. A solid uniform with a pattern.

1 Q. What colour was that uniform?

2 A. Green, the one that I have underlined.

3 Q. Sir, are you referring to the pictures that were provided to you

4 in the context of your first statement that are the camouflage patterns

5 that were shown to you that was a NATO template. Is that what you're

6 referring to?

7 A. Yes.

8 [Prosecution counsel confer].

9 MS. CARTER: Your Honour, as of yesterday we were actually able to

10 locate a copy, a coloured copy, of this camouflage pattern that is used on

11 the back of several statements and we'd ask to use that colour copy on the

12 ELMO in order to have the witness be able to identify what he's seeing.

13 MR. LUKIC: Excuse me, Your Honour, objection.

14 JUDGE BONOMY: Yes, Mr. Lukic.

15 MR. LUKIC: We've never seen this and we want to know how many

16 were offered on this colour pattern.

17 MS. CARTER: Your Honour, there's a black and white copy of it

18 attached to the first statement of this witness. It's fairly clear it's

19 four, which the Defence does have a copy of it, it just doesn't happen to

20 be in colour. It's in black and white.

21 MR. LUKIC: We've been asking for a colour one for a long time,

22 and actually we've never seen it.

23 JUDGE BONOMY: Well, could I see it, please?

24 MS. CARTER: Certainly, Your Honour. Your Honour, we just

25 received this ourselves. There has been -- because of the request of the

1 Defence as well as for our own use with our statements, we've been in

2 contact with the Kosovo field offices. We have been talking to other

3 investigators. We have been trying to find a colour copy of this. It

4 came into our possession yesterday, and at that point in time it was used

5 with the witness.

6 MR. LUKIC: How come then we were --

7 JUDGE BONOMY: No, I would like to see it, please.

8 MS. CARTER: And respectfully, Your Honour, this has been

9 submitted to ERN'ing in order to provide a colour copy. It's in the

10 process as opposed to something we can electronically disclose at this

11 time.

12 [Trial Chamber confers]

13 JUDGE BONOMY: Show it to Mr. Lukic, please.

14 This sort of thing can be avoided by informal indication of the

15 fact that there's going to be an additional item and the exhibition of it

16 to the Defence before we get into court.

17 MS. CARTER: Respectfully, Your Honour, it was the intention of

18 the Prosecutor not to use this exhibit until there was an ERN'ing process.

19 Only once the witness began referring to it and is clearly confused by the

20 testimony he is giving at this point did I want to -- did I present it

21 before the Court. It was not an intention to be used as a surprise. It

22 was specifically going to be ERN'ed and then disclosed before we used it

23 with any witness.

24 JUDGE BONOMY: But it's an item that's arisen before and it was

25 inevitably going to have to be in the a process in the case and therefore

1 immediately when you had it you should have disclosed it.

2 MS. CARTER: Your Honour, we sent it for MIF'ing, it is in the

3 process of being ERN'ing, it's --

4 JUDGE BONOMY: Look, don't talk to me in United Nations jargon.

5 What does the world know about the ERN'ing process? Probably even less

6 than I do. Let's talk in real language, please.

7 MS. CARTER: What the Prosecution did once it received this

8 document is that it sent it to the evidence section in order to have a

9 number accounted for so that there could -- so that it could be released

10 electronically, which has been the procedure we've used most of the

11 exhibits with the Defence and we are still waiting for that process to be

12 completed, where a number will be assigned to it. Once that number gets

13 assigned, it comes back to us as a file through an e-mail. At that point

14 in time it was going to be disclosed to the Defence.

15 [Trial Chamber and registrar confer]

16 JUDGE BONOMY: Now, Mr. Lukic.

17 MR. LUKIC: Yes, Your Honour.

18 JUDGE BONOMY: What do you have to say now that you've seen it?

19 MR. LUKIC: First of all, we would object because as we have seen

20 before, the other witness showed at least 11 or 12 patterns he saw in his

21 own village, so we think that it would be fair to show to the witness at

22 least that much patterns, not to choose one out of two or out of four.

23 MS. CARTER: Your Honour, this -- this particular --

24 JUDGE BONOMY: If I want you to address me, I will invite you to

25 address me.

1 MS. CARTER: Yes, Your Honour.

2 JUDGE BONOMY: Yes, Mr. Lukic, please finish what you have to say.

3

4 MR. LUKIC: And we would object to this kind of pattern parade or

5 recognition of patterns, where we have only four patterns offered. Thank

6 you.

7 [Trial Chamber confers]

8 JUDGE BONOMY: It's so unfortunate that yet more time is wasted

9 because something is produced in an inappropriate manner in court. It's

10 very distressing that the routine conduct of this trial is constantly

11 disrupted by these failures on the part of the Prosecution. Eventually it

12 is going to be necessary for action to be taken, to try to bring home the

13 importance of intimation of material at the earliest possible date.

14 Having said these various things, it is plain to us that there will be no

15 prejudice to the Defence by the use of this document. And therefore, we

16 will permit its use. We consider it to be an adequate basis on which to

17 test the witness's identification of uniform.

18 MS. CARTER: Thank you --

19 JUDGE BONOMY: So it can be put on the ELMO.

20 MS. CARTER: Thank you, Your Honour. And for clarification also

21 of the record, I direct the Court to the witness's statement of February

22 27th of year 2000. The specific page number of K0075546 is --

23 JUDGE BONOMY: Ms. Carter, I have it in front of me. I know

24 exactly what material you have here.

25 Now we can proceed.

1 MS. CARTER: Thank you, Your Honour.

2 Q. Sir, can you please indicate if you see a pattern or a colour

3 pattern that looks like what you saw the MUP police wearing?

4 A. This one, this colour is the police colour.

5 Q. Okay.

6 MS. CARTER: Let the record reflect that it's the top left that

7 was indicated of being the MUP police pattern.

8 Q. Sir --

9 JUDGE BONOMY: Well, we have had an answer, have we, that they

10 were MUP police?

11 MS. CARTER: Yeah, he indicated police. I'm adding the MUP

12 police. I apologise.

13 JUDGE BONOMY: Well --

14 MS. CARTER: Yes, Your Honour --

15 JUDGE BONOMY: Let's proceed on what the evidence actually amounts

16 to.

17 MR. LUKIC: Excuse me, Your Honour.

18 JUDGE BONOMY: Yes, Mr. Lukic.

19 MR. LUKIC: The witness said "green uniform."

20 JUDGE BONOMY: Indeed, but now we know what he thinks green is.

21 That's a matter for cross-examination and testing in due course.

22 MS. CARTER:

23 Q. Sir, when you arrived at the firing range excavation site, you

24 indicated that you saw police there and that you believed that they were

25 protecting you. At some later point, did you see police doing additional

1 tasks at the firing range?

2 A. Yes.

3 Q. You indicate in your statement that there were two holes being dug

4 at the firing range. Is that correct?

5 A. Yes.

6 Q. You and the other employees of your company were in one hole. Is

7 that correct?

8 A. Yes.

9 MS. CARTER: Respectfully, Your Honour, I will not be using the

10 ELMO any longer.

11 JUDGE BONOMY: That document will require a number at some stage.

12 MS. CARTER: Yes, Your Honour, and we're seeking that document to

13 be given the next IC number.

14 THE REGISTRAR: That will be IC42, Your Honours.

15 JUDGE BONOMY: Thank you.

16 MS. CARTER:

17 Q. Who was excavating the second hole at the firing range?

18 A. We were working at one of the holes, the people from the Hygijena

19 company. The other hole was being done -- was being dug by the police.

20 Q. You indicate that there were refrigerator trucks on site. Were

21 each of the holes being put into the same truck or different trucks?

22 A. No. In one of the holes where we were working we had one

23 refrigerator truck, while the police had another.

24 Q. What was in the holes that you were excavating?

25 A. Corpses.

1 Q. In the excavation that you were doing, can you please describe for

2 the Court how that took place. Was there -- was it being manually done or

3 was machinery being used?

4 JUDGE BONOMY: Why can't we just accept what's in the statement

5 for this?

6 MS. CARTER: Your Honour, there is an additional portion of it in

7 regards to the machinery that --

8 JUDGE BONOMY: Can you not get to that?

9 MS. CARTER: Okay. Certainly.

10 JUDGE BONOMY: Yeah.

11 MS. CARTER:

12 Q. Sir, at some point in time, as opposed to having manual lifting of

13 the bodies out of the hole, was there a point in time where the excavator,

14 the machinery itself, was being used to lift corpses out of this

15 exhumation site?

16 A. The bodies could not be taken out of the hole by hand; it had to

17 be with an excavator because it was a very deep hole.

18 Q. And, sir, at the point in time where the excavator was being used

19 to remove these bodies, was there ever an occurrence where dismemberment

20 or other separation of the bodies was taking place?

21 A. Yes, of course that happened because the excavator could not take

22 care of preserving the bodies. It was night as well, and the work was

23 such that we were asked and everybody was required to bring these bodies

24 out of the holes as soon as possible.

25 Q. And the bodies that were taken out of this mass -- would you --

1 was the hole itself, was it individual graves or was it a mass grave?

2 A. It was a mass grave.

3 Q. And in this mass grave, was it men only, men and women, men,

4 women, and children? Who was in the hole that you were excavating?

5 A. They were civilians, all of them. They had civilian clothes on.

6 It was night-time. I could not recognise the people, you know, the

7 bodies, but the light of the excavator enabled us to see a little bit.

8 And the light of the excavator helped us as well in that -- that we took

9 the bodies from there and we put them in the refrigerator truck. And

10 there were men, women, and children, all of them in civilian clothes.

11 Q. Thank you. And, sir, after you finished clearing the hole that

12 you were working on and the police cleared the hole they were working on,

13 did you go to a second location?

14 A. Yes.

15 Q. When you arrived at the second location, did you do a similar

16 exhumation of a mass grave?

17 A. Yes.

18 Q. Okay. You indicated that you began these exhumations sometime in

19 the night, well after your shift. What time did you complete the

20 exhumation of the second site?

21 A. Well, I could respond about the first and the second site. Both

22 of them finished at about 4.00 in the morning.

23 Q. And given that the time was 4.00 a.m., is it fair to say that both

24 of these exhumations took place in the cover of night?

25 A. Yes.

1 JUDGE BONOMY: Is -- Ms. Carter -- well, sorry, I should ask the

2 witness.

3 You said that there were 80 to 90 bodies removed. Was that from

4 one hole only?

5 THE WITNESS: [Interpretation] One hole only, the first one.

6 JUDGE BONOMY: And is that one where you were working?

7 THE WITNESS: [Interpretation] Yes, the four workers of the

8 Hygijena company, we exhumed about 80 or 90 bodies. I couldn't count them

9 one by one, but the truck was full --

10 JUDGE BONOMY: The second one you spoke of, who actually was

11 removing the bodies from that hole?

12 THE WITNESS: [Interpretation] The same workers, us.

13 JUDGE BONOMY: So what was it that the police were doing?

14 THE WITNESS: [Interpretation] When we were working at the firing

15 range, we were working at the first hole and the police at the second one,

16 while on the second site the police did not do anything with the holes.

17 They just showed us where the bodies were, and we started working.

18 JUDGE BONOMY: I was unclear that we were talking about one site

19 with two holes and then another site. So going back to the first site

20 where you said there were 80 or 90 bodies, did they come from only one

21 hole, one grave?

22 THE WITNESS: [Interpretation] One hole, where I was working, where

23 we were working. I mean the Hygijena workers.

24 JUDGE BONOMY: And what was happening in the other hole where the

25 police were digging?

1 THE WITNESS: [Interpretation] Well, there might have been bodies

2 there as well, but we were told not to interfere with their work. We

3 continued with our work and they did their work. We didn't know what was

4 happening.

5 JUDGE BONOMY: All right. Thank you.

6 Well, we'll break now and resume at five minutes past 6.00.

7 Just leave the courtroom, Mr. Berisha -- Mr. Gjogaj. Thank you.

8 --- Recess taken at 5.33 p.m.

9 --- On resuming at 6.06 p.m.

10 JUDGE BONOMY: Ms. Carter.

11 MS. CARTER: Thank you, Your Honour.

12 Q. One last topic for clarification. Sir, you indicated that this

13 firing range was on the main road between Prizren and Suva Reka. Is that

14 correct?

15 A. Yes.

16 Q. And you've also indicated that you believe that this is a military

17 firing range. Is that correct?

18 A. Yes.

19 Q. How far away between Prizren and Suva Reka approximately was this

20 range?

21 A. Approximately from Prizren at Lubishte was the police station. It

22 was below this police station on the left side of the road going to

23 Suhareke.

24 Q. And, sir, was this the only military firing range on the road

25 between Prizren and Suva Reka?

1 A. Maybe there was at another location as well a firing range like

2 that, but as for this one I know it was a military firing range.

3 Q. But, sir, I'm just talking about the brief distance between

4 Prizren and Suva Reka. This is the only firing range. Is that correct?

5 A. Yes.

6 MS. CARTER: Thank you, Your Honour. At this time I have no

7 further questions.

8 JUDGE BONOMY: Thank you.

9 Mr. O'Sullivan.

10 MR. O'SULLIVAN: We will follow the order of the indictment, and I

11 have no questions.

12 JUDGE BONOMY: Mr. Fila.

13 MR. FILA: [Interpretation] I don't have any questions,

14 Your Honour.

15 JUDGE BONOMY: Mr. Visnjic.

16 MR. VISNJIC: [Interpretation] No questions, Your Honour, but the

17 way I understood was that this witness was to be cross-examined tomorrow.

18 Perhaps I am not the right person to be saying this, but I'm not sure.

19 JUDGE BONOMY: Yeah, the only change was that the translation was

20 delivered, but it was very recently. So have you -- are you likely to

21 have questions?

22 MR. VISNJIC: [Interpretation] I don't think so.

23 JUDGE BONOMY: All right. Thank you.

24 Now, Mr. Aleksic, you may be one who does. Do you?

25 MR. ALEKSIC: [Interpretation] Yes.

1 JUDGE BONOMY: And is it Mr. Ackerman's intention to deal with

2 this?

3 MR. ALEKSIC: [Interpretation] Yes. Yes, Your Honour, precisely

4 so. This is what I was told by my lead counsel. I have read this

5 document in Serbian, but without my lead counsel's consent we are unable

6 to go on with the cross-examination.

7 JUDGE BONOMY: Mr. Cepic?

8 MR. CEPIC: [Interpretation] Your Honour, I may have a few short

9 questions, but I understood that I may begin my cross-examination

10 tomorrow.

11 JUDGE BONOMY: You may if you wish. I just want to know if you

12 wish to do it today.

13 MR. CEPIC: [Interpretation] I believe it would be better for me to

14 go after Mr. Ackerman.

15 JUDGE BONOMY: All right. Thank you.

16 And, Mr. Lukic.

17 MR. LUKIC: Yes, Your Honour, I would like to use our right to

18 start tomorrow, if possible.

19 JUDGE BONOMY: All right.

20 Well, we've hit the buffers again, and we'll adjourn until

21 tomorrow.

22 Mr. Gjogaj, it's going to be necessary for you to return to

23 complete your evidence tomorrow morning. The -- there may be questions

24 from various counsel for the accused, and they understood that it would be

25 tomorrow when these questions would be asked. That is an appropriate

1 course to follow, so we will adjourn now. The important thing I have to

2 say to you is that between now and tomorrow morning, when you return, you

3 must not discuss your evidence with anyone, that means either the evidence

4 you've given already or the evidence that you may give tomorrow. You can

5 talk to anybody about anything else, but please do not discuss the

6 evidence. All right? And we will see you back here again at 9.00

7 tomorrow morning. You may now leave the courtroom.

8 THE WITNESS: [Interpretation] Thank you.

9 [The witness stands down]

10 JUDGE BONOMY: We'll adjourn until 9.00 tomorrow.

11 --- Whereupon the hearing adjourned at 6.13 p.m.,

12 to be reconvened on Friday, the 22nd day of

13 September, 2006, at 9.00 a.m.

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