1 Monday, 8 September 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, could you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-04-84-R77.4, the
9 Prosecutor versus Astrit Haraqija and Bajrush Morina.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Mr. Morina, can you hear me in a language you understand?
12 THE ACCUSED MORINA: [Interpretation] Yes, I can.
13 JUDGE ORIE: Mr. Haraqija, can you hear me --
14 THE ACCUSED HARAQIJA: [Interpretation] Yes --
15 JUDGE ORIE: -- in a language you understand? I think you said
16 yes already before I finished my question, but apparently no problem
18 May I have the appearances. Prosecution first.
19 MR. SAXON: Good morning, Your Honours. Daniel Saxon for the
20 Prosecution, together with our case manager, Mr. Crispian Smith.
21 JUDGE ORIE: Thank you, Mr. Saxon.
22 For the Defence, Haraqija Defence first.
23 MR. KHAN: If it please Your Honours, good morning. Karim Khan
24 for the respondent, Astrit Haraqija, assisted by my learned friend pro
25 bono legal assistant Caroline Buisman on my right and on the far right
1 legal assistant Gissou Azarnia.
2 JUDGE ORIE: Thank you, Mr. Khan.
3 And for Mr. Morina.
4 MR. DIECKMANN: Good morning, Your Honours. My name is Jens
5 Dieckmann, Defence counsel for Mr. Bajrush Morina, and on the left side
6 IS our legal assistant Ms. Christine Kerll and pro bono assistant
7 Danielle Paten.
8 JUDGE ORIE: Yes. They're all a bit hidden behind screens, but
9 thank you, Mr. Khan. Thank you, Mr. Dieckmann.
10 We are here for the trial today of Mr. Morina and Mr. Haraqija.
11 Mr. Morina is charged with contempt. Mr. Haraqija is charged with
12 contempt and incitement to contempt.
13 Mr. Saxon, and I'm also addressing the Defence, I do understand
14 that you'd like to make a short opening statement, and that the Defence
15 refrains at least at this moment from making an opening statement and
16 it's still open whether an opening statement would be made at the
17 beginning of the Defence case.
18 MR. KHAN: Your Honour, that's quite correct. There won't be an
19 opening statement; however, I did indicate before court that Mr. Haraqija
20 intends to avail himself under Rule 84 bis of making a sworn statement
21 from the dock.
22 JUDGE ORIE: 84 bis, is that a sworn statement?
23 MR. KHAN: Your Honour, the accused can't be compelled, as I
24 understand it, to give a sworn statement, but it's a matter of Your
25 Honours' discretion. The reason, in all candour, of why I am of the mind
1 and the accused is minded to give a sworn statement is two-fold.
2 Firstly, it may incrementally increase the weight of what he says because
3 it's sworn and the consequences of perjury. Secondly, we keep open the
4 possibility as I alerted my learned friend for the Prosecution before the
5 weekend that Mr. Haraqija may elect to give evidence in his own defence.
6 Should that be the case, it will be a short matter, but it will save us
7 having to go over all the issues that he mentions in his unsworn
8 statement, and it allows the Prosecution to cross-examine him quite
9 properly on matters that are raised now.
10 So I think it's also a function of -- well, it also has the
11 advantage, in my respectful submission, of some judicial economy. So
12 those are the two reasons why I would urge that the statement be sworn.
13 It won't be very long, Your Honours.
14 JUDGE ORIE: Mr. Saxon, what's your position as far as giving a
15 sworn statement under Rule 84 bis?
16 MR. SAXON: Your Honour, the Prosecution has no objection as long
17 as obviously the Prosecution then would have an opportunity to
18 cross-examine the witness.
19 JUDGE ORIE: You would say the short statement under Rule 84 bis
20 would then trigger a right to cross-examine Mr. Haraqija; is that
21 correctly understood?
22 MR. SAXON: Well, because Rule 84 bis, Your Honour, does not
23 require a solemn declaration - but my learned friend is suggesting that
24 we use that procedure now - it seems to me, then, the Prosecution should
25 have the opportunity to test the evidence of the witness.
1 JUDGE ORIE: Yes.
2 Now, I do understand you do consider it to be evidence because at
3 the same time, Mr. Khan, I hear you say that Mr. Haraqija may decide to
4 take the stand as a witness in his own case, but that you consider a
5 statement under Rule 84 bis not to trigger the right to cross-examine the
6 accused on his statement?
7 MR. KHAN: Your Honour is quite right that as a matter of
8 construction, 84 bis is an opportunity for an accused to give a statement
9 and there's no right of cross-examination from that. The rule, of
10 course, is permissive in nature in my submission. He can't be compelled
11 to make a sworn statement; but Your Honours in your inherent discretion
12 may allow him to give a sworn statement should he wish to do so.
13 Your Honours, at the end of the proceedings, you will decide
14 after hearing all the evidence what weight, if any, to accord to this
15 unsworn statement, as you will in relation to all the evidence in this
17 JUDGE ORIE: Yes.
18 MR. KHAN: My simple point is if it is sworn and if the accused
19 does elect to give evidence, it obviates the need to rehash any matters
20 that have been raised by the accused now. If he doesn't elect to give
21 evidence, of course, Your Honours will decide what weight is appropriate
22 at the end of the trial. It was an attempt to be of assistance.
23 JUDGE ORIE: Yes, there is no doubt about that.
24 Mr. Khan, is there any precedent of accused giving sworn
25 statements under Rule 84 bis?
1 MR. KHAN: Your Honour, I'm not aware of any. The cases I'm
2 aware of where accused have given statements from the dock, they have
3 been unsworn. Your Honour, I'm in your hands. It's not a matter I'm
4 urging you very strongly one way or the other, but I don't see any harm
5 in the proposal that I put forward; but, of course, I'm in your hands,
6 Your Honour.
7 [Trial Chamber confers]
8 JUDGE ORIE: The Chamber has briefly considered the matter. If
9 the accused chooses to make a sworn statement to which he cannot be
10 compelled under Rule 84 bis, then the Chamber rules that the Prosecution
11 is entitled to cross-examine the witness on that statement.
12 The Chamber does appreciate that you have tried to assist us in
13 judicial economy, Mr. Khan. It's not without reason that I ask you
14 whether there was any precedent because I was not aware of it. So it's
15 new territory, so to say, but this is the ruling of the Chamber.
16 If Mr. Haraqija chooses to give the solemn declaration at the
17 beginning of his statement, then the Prosecution will have an opportunity
18 to cross-examine him, still to be considered at what time exactly because
19 that raises another matter; that is, whether or not an accused taking the
20 stand should be examined first as what I understand is at least a
21 tradition in English law, not in all the systems, but at least in English
23 MR. KHAN: Your Honour, I'm most grateful. I didn't intend at
24 all to complicate matters. I think the simplest thing in that case is
25 the accused can be invited to give an unsworn statement from the dock.
1 JUDGE ORIE: Yes.
2 MR. KHAN: If I call the accused, I will indicate now and I did
3 indicate to my learned friend as well; and, indeed, it was the
4 Prosecution's suggestion to which I readily agreed that he will be my
5 first witness before I call any other witnesses in the Defence case.
6 And, of course, it's open to the Prosecution even without the evidence
7 being under oath that they have leave, with Your Honour's consent of
8 course, to cross-examine on any matters, including anything he may say in
9 the dock at the moment.
10 So, Your Honours, perhaps he can be invited in due course to give
11 an unsworn statement from the dock; it may be simpler.
12 JUDGE ORIE: Yes.
13 Having settled this matter, Mr. Saxon, are you ready to give
14 your, as I understand, brief opening statement?
15 MR. SAXON: I hope it will be brief, Your Honours. Just one
16 question, the Prosecution has two, hopefully, brief administrative
17 matters to raise. Would the Chamber like me to raise them before my
18 opening statement or after?
19 JUDGE ORIE: If they affect the opening statement, you're invited
20 to do it before the opening statement; if not, let's start with the
21 opening statement so that at least we know what your case is.
22 MR. SAXON: Then I will proceed with the opening statement, Your
24 JUDGE ORIE: Please proceed.
25 MR. SAXON: Your Honours, this case is about a deliberate and
1 calculated effort by Astrit Haraqija and Bajrush Morina to interfere with
2 a protected witness in a trial before this Tribunal.
3 At the time of these events, July 2007, Astrit Haraqija was the
4 minister for culture, youth, and sport in Kosovo. Bajrush Morina, a
5 journalist by background, was employed in the same ministry as a
6 political adviser to Angelina Krasniqi, one of the deputy ministers.
7 Morina had interviewed the protected witness for a newspaper article
8 several years earlier.
9 In early July 2007, Haraqija instructed Morina to contact the
10 protected witness in his country of residence and arrange for Morina and
11 Haraqija to travel to that country in order to speak directly with the
12 protected witness. The purpose of the visit was to convince the
13 protected witness to change or withdraw his testimony against Ramush
14 Haradinaj in case number IT-04-84. And you will find evidence of this,
15 Your Honours, in Exhibits 1 and 2, recordings of the conversations that
16 took place; and Exhibits 3 and 4, the ICTY statements of the protected
17 witness; as well as Exhibit 8, the OTP's suspect interview with
18 Mr. Morina.
19 Initially, both Haraqija and Morina intended to travel to meet
20 the protected witness, and you'll find evidence of this in Exhibit 8;
21 Exhibit 11, which are travel documents obtained from the Kosovo Ministry
22 of Youth, Culture, and Sport; and Exhibit 12, a series of SMS messages
23 sent by Morina to the cellular telephone of the protected witness before
24 their first meeting.
25 Since Morina knew the protected witness but Haraqija did not,
1 Morina's role, initially, was to introduce Morina to the protected
2 witness. Morina would speak with the protected witness on 10 July, and
3 then Haraqija would meet with the protected witness on 11 July, after
4 Morina had explained to the witness the nature of the -- the reasons why
5 they were coming to see him.
6 However, Mr. Haraqija eventually decided not to travel to the
7 third country and meet with the protected witness directly. Mr. Haraqija
8 directed Mr. Morina to meet with the protected witness and tell him that
9 the protected witness was one of three persons who could save Ramush
10 Haradinaj, and to try to convince the protected witness to change or
11 withdraw his testimony. Haraqija told Mr. Morina, his subordinate: "Go,
12 or it won't be good for you." You'll find that at Exhibit 1A, page 24.
13 On Saturday, the 10th of July, Mr. Morina met with the protected
14 witness in a hotel. Mr. Morina followed the instructions of his
15 minister, Mr. Haraqija, but the protected witness refused to change his
16 plans to testify before this Tribunal. Mr. Morina was not aware at that
17 time that, in order to protect the witness's safety and security, the
18 meeting was being recorded by a witness protection unit of the police
19 force in the country where the protected witness resides. And you'll
20 find that in Exhibits 1, 3, and 4 -- 1, 2, 3, and 4, I should say.
21 After that initial conversation, Mr. Morina attempted to inform
22 Mr. Haraqija about the results of the meeting; however, Mr. Morina was
23 not able to reach Mr. Morina [sic]; and, instead, Mr. Morina provided the
24 information to Veli Bytyqi, the minister's spokesperson.
25 On Sunday, the 11th July, Mr. Morina and the protected witness
1 met again in a hotel and discussed the same issues. Again, you'll see
2 that in Exhibits 2, 3, and 4. The protected witness stuck to his
3 position that he would not change his testimony.
4 During this trial, you will receive evidence demonstrating that
5 Mr. Haraqija served as the deputy chairman of the "Defence Committee for
6 Ramush Haradinaj," a committee established to raise funds to pay the
7 costs of Mr. Haradinaj's defence. And there are documents pertaining to
8 this committee in Exhibit 16.
9 Mr. Haraqija believed that by prosecuting Mr. Haradinaj for the
10 events that occurred in Kosovo in 1998, for certain events, this Tribunal
11 was equating Kosovo Albanian victims with their executioners. You'll
12 find that, Your Honours, in Exhibit 9, pages 12 and 13, the OTP's suspect
13 interview with Mr. Haraqija conducted on 27 October 2007.
14 Your Honours, pursuant to Rule 77(A)(iv) of the Tribunal's Rules
15 of Procedure and Evidence, Mr. Haraqija and Mr. Morina committed contempt
16 of the Tribunal by interfering with a witness who was about to give
17 evidence in proceedings before a Chamber. Mr. Haraqija's guilt is not
18 diminished by the fact that he sent Mr. Morina as a messenger to deliver
19 this message. Indeed, this conduct by a person in Mr. Haraqija's
20 position of authority aggravates Mr. Haraqija's level of criminal
22 The actions of Mr. Haraqija also amount to the alternative crime
23 of inciting contempt of the Tribunal, as prohibited by Rule 77(B). In
24 the Beqaj judgement, the Trial Chamber noted that:
25 "Incitement is defined in common-law systems as encouraging or
1 persuading another to commit an offence, and one line of authority would
2 also view threats or other forms of pressure as a form of incitement.
3 Civil-law systems punish direct and public incitement assuming the form
4 of provocation which is defined as an act intended to directly provoke
5 another to commit a crime or a misdemeanour."
6 In this case, Mr. Haraqija incited Mr. Morina to commit content
7 of this Tribunal by directing, encouraging, persuading, or pressuring
8 Mr. Morina to travel to meet the witness to deliver a message intended to
9 dissuade the witness from testifying.
10 Your Honours, the evidence that you will hear during this trial
11 will convince you beyond a reasonable doubt that Mr. Morina and
12 Mr. Haraqija are guilty as charged.
13 That concludes the Prosecution's opening statement, Your Honour.
14 JUDGE ORIE: Thank you, Mr. Saxon.
15 Mr. Haraqija --
16 MR. KHAN: Khan --
17 JUDGE ORIE: No. I was addressing Mr. Haraqija because Mr. Khan
18 already announced that Mr. Haraqija would like to make a statement under
19 Rule 84 bis.
20 Mr. Haraqija, you have an opportunity to do so. Your statement
21 is given under the control of this Trial Chamber, and we'll carefully
22 consider whether your statement is pertinent to this case.
23 THE ACCUSED HARAQIJA: [Interpretation] Thank you. I would --
24 JUDGE ORIE: I would also like to inform you that whatever you
25 say, the Chamber may consider it to see whether and what probative value
1 it has. So it could - of course, I do not know what the content is - it
2 could be used against or, of course, in favour of you. Could you tell us
3 approximately how much time you would need for this statement?
4 THE ACCUSED HARAQIJA: [Interpretation] I would say ten minutes
6 JUDGE ORIE: Yes. Then you may proceed, Mr. Haraqija.
7 THE ACCUSED HARAQIJA: [Interpretation] Your Honours, I must admit
8 that I'm quite offended to be here on the desk of the accused. A good
9 name to be blemished by an international indictment and to face an
10 accusation. I cannot call it anything else but a trauma experience.
11 This is the situation I find myself in today.
12 The Kosovar society is complex and has many nuances. I will not
13 go into details, but I find myself divided into two. I'm in the fight
14 against the accusations of the Prosecution which is not true, and nothing
15 will change that reality. My wife was a witness and she was present when
16 I was accused of crimes against the Tribunal. There was no such
17 discussion on my part as the Prosecution says.
18 May I continue?
19 JUDGE ORIE: [Microphone not activated]
20 My microphone is switched on, but now you hear me again.
21 If I may give you some guidance. Your plea of not guilty is on
22 the record so that your challenge the charges brought against you is
23 clear and doesn't need any repetition at this moment. At the same time,
24 until now we have not heard things that are assisting the Chamber and are
25 very pertinent to this trial. So if you please focus on matters
1 pertinent and relevant for us to hear at this moment, that would be
3 Please proceed.
4 THE ACCUSED HARAQIJA: [Interpretation] Your Honours, my lawyer
5 advised me to tell you a word or two about myself. As you know, my name
6 is Astrit Haraqija, born in 1972, 14th June, in Gjakova municipality with
7 an Asian tradition. I got married after the war, the 1999 war. I have
8 two children, an 8-year-old boy Klesta, and a daughter who will be four
9 years old in five days.
10 In 1994, I started -- I involved myself in policy -- in politics,
11 sorry. After six months, I was nominated as the leader of the Democratic
12 Legal Alliance
13 of the youth organization, the only one functioning in the Gjakova
14 municipality at the time, because all the students and teachers were
15 expelled from schools. It was mainly our organization led by me that
16 dealt with the cultural and sport activities and organized this life in
17 the Gjakova municipality, trying to support the Albanian population at
18 the time when the Serb services started to threaten the activists of
19 human rights in Kosova.
20 During this occupation I, as I said, dealt with the youth forum
21 and dealt with cultural and sports activities till 1999. In 1997, I had
22 my initial contacts with the KLA, in the end of this year. From this
23 time on, I had mainly contacts concerning food and clothes. In 1998, in
24 November, I was proclaimed terrorist by the Serb authorities. From this
25 moment on, I lived in illegality; and until the war ended, I stayed in
1 the mountains together with other people who had links with the KLA.
2 Gjakova was liberated on the 14th June 1999, which coincides with
3 my birthday. Afterwards, I started to deal with the organization of the
4 institutional life in the municipality of Gjakova
5 of the LDK in Gjakova, the branch in Gjakova; and the following day, we
6 organized a press conference by Edita Tahiri, Lutfi Havazi, Haliz Gagica.
7 In this press conference, it was said that the LDK exists and that the
8 president is alive and feeling well, and that he would be coming back to
9 Kosova soon.
10 Soon afterwards, I became the opposition of the local
11 self-government in our municipality. The headquarters had nominated this
12 authority; and at the same time, they requested me to become the mayor of
13 the Gjakova municipality. I refused this post because I did not support
14 the standpoints of the KLA at that time.
15 For the first time, I met with the now late-President Rugova in
16 1994 who was the chairman of the LDK in Kosova. Until 1999, I mainly
17 dealt with Fehmi Agani, Bardhyl Caushi, both of them late, and the
18 president of the branch, Mr. Shehu.
19 After the NATO air campaign in 1999, I began my direct contacts
20 with the late-President Rugova, since a small number of people continued
21 to support the ideas of Rugova even in 1999. I became very close with
22 Mr. Rugova and I liked his ideas; I found them phenomenal and I defended
23 them. He had a very great influence in my life, and he was an
24 inspiration for me. He continues to inspire me.
25 JUDGE ORIE: I asked you to have a pause because the French
1 translation was a bit behind.
2 You may proceed.
3 THE ACCUSED HARAQIJA: [Interpretation] Thank you, Your Honour.
4 As I said, he deeply influenced my life, my existence, and he
5 inspired me. He continues to inspire me even from his grave. He's an
6 individual who didn't talk much, who would never tell someone to shut up
7 or order someone to leave his office. In general, he was very calm and
8 peaceful person, although he grew up only with his mother, without with
9 his father who had been killed by the Serb authorities, both his father
10 and his grandfather.
11 JUDGE ORIE: Mr. Haraqija, it seems that you're now going into
12 details on matters which are not of primary relevance for the case.
13 Please proceed.
14 Mr. Khan.
15 MR. KHAN: Your Honour, with your leave, I hear what Your
16 Honour's saying; and, of course, the accused, in my respectful
17 submission -- the respondent, in my respectful submission, has indicated
18 he'll be rather brief. He's going to be ten or 15 minutes at most. The
19 matters, again in my respectful submission, are relevant. He's talking
20 about his relationship with the LDK, and the Prosecution have made it
21 very clear in their pre-trial brief that they ascribe a motive to my
22 client, to Haradinaj, who's, of course, of a completely different party.
23 So the links to the LDK and the lack of evidence and the lack of
24 a link to the AAK goes to one of the relevant issues in my case. Your
25 Honour, the other matters, of course, regarding his functions in Kosovo
1 are generally relevant to propensity and sentence.
2 JUDGE ORIE: Mr. Khan, I stopped the witness when he started to
3 go into the details about the personality of a person he said inspired
4 him politically, and that is why I intervened.
5 Please proceed, Mr. Haraqija, and please keep in mind what I just
7 THE ACCUSED HARAQIJA: [Interpretation] Your Honours, my ties were
8 with Mr. Rugova since I was given the right upon counselling my lawyer to
9 speak about Astrit Haraqija; but if you decide the opposite, I can stop
10 now. There's no problem.
11 JUDGE ORIE: I'm not saying that you have to stop. Of course, if
12 you give us an impression of your person by explaining what you did,
13 you're free to do so; but when you started telling us about the qualities
14 and the personality of Mr. Rugova, I considered that to be not relevant
15 for this case. Of course, your political orientation and affiliation has
16 some relevance for this case; but please, without going into details,
17 tell about yourself and not about the people who primarily inspired you
18 in political terms.
19 Please proceed.
20 THE ACCUSED HARAQIJA: [Interpretation] All right.
21 I would again stress that I'm happy to be -- to have been at the
22 service of Mr. Rugova, and thanks to him now we have freedom in Kosova
23 and in our state.
24 THE INTERPRETER: The interpreter didn't hear the year.
25 THE ACCUSED HARAQIJA: [Interpretation] In cooperation with the
1 organization, Elita, functioning in Gjakova municipality, we opened this
2 call for the minorities for the Roma, Ashkali, and the Egyptian minority,
3 because at the time the situation was not very good. And in very
4 difficult economic situation, people refused to go to school. The school
5 founded by us offered a six-month curricula for the minority children
6 before they started going to public schools.
7 At the same year, the local elections were held. The LDK won --
8 JUDGE ORIE: Mr. Haraqija, the interpreters, a few lines ago, did
9 not hear in which year this took place; and since you now say "at the
10 same year," could you please repeat what year you have in mind.
11 THE ACCUSED HARAQIJA: [Interpretation] In 1999, we opened the
12 offices of the LDK in Gjakova and in Pristina, so I refer to the same
13 year when we opened the minority school.
14 In 2000, the local elections were held and the LDK of Kosova won
15 the elections at all levels, in all municipalities. The LDK, after the
16 victory, proposed me to take up the office of the director for youth,
17 culture, and sports in the municipality of Gjakova
18 because my aim, primary aim, was for the LDK to win the election, both
19 the LDK and President Rugova. I had no other ambition or aim in mind.
20 This was my only mission, to defend the president and his ideas and the
21 ideas of the LDK party.
22 I continued to work in this respect because at the time different
23 individuals took us for collaborators with the authorities, Serb
24 authorities, in Belgrade
25 with the ideas of President Rugova, it was my duty to explain to the
1 inhabitants of Gjakova Municipality
2 very well - I felt it was my duty to explain to them that the allegations
3 against Rugova and the LDK were not true.
4 In 2003, I took up the duty of the president of the local
5 self-government of Gjakova. This job was not very ordinary because the
6 communist tradition that dominated for 50 years was still there. It
7 wasn't usual for a young man wearing an earring to be the chairman of
8 this body and to be the representative of the system; but on the other
9 side, my name was known to all Gjakova public opinion because it had been
10 there for the last nine years.
11 During the 21 months of me being on this post, I made investments
12 in Gjakova municipality above 22 million euros - and the budget was only
13 800 million -- 800.000 euros - thanks to the cooperation with the Italian
14 KFOR in Gjakova who helped us with the infrastructure, the US aid, the
15 American US aid, and the English organization as well as other
16 organizations, NGOs from Sweden
17 In addition to the investments that I procured at that time, the
18 UNMIK had put a condition for all these standards to be fulfilled. There
19 was six standards, and I was supposed to report every six months --
20 JUDGE ORIE: Mr. Haraqija, you've used until now 15 minutes.
21 You're going into details about the financing of your work, which does
22 not assist the Chamber.
23 Mr. Khan.
24 MR. KHAN: Your Honour, I'm most grateful. I know Your Honour is
25 trying to be helpful. Of course, Mr. Haraqija is not a lawyer, but it's
1 quite clear what he's trying to do is to show the investments he made and
2 the assistance he gave to minorities in his municipality. That is, in my
3 respectful submission, quite clearly relevant. There's no separate
4 sentencing stage in the event that you are not -- in the event that
5 you're persuaded by the Prosecution's case.
6 Your Honour, the other aspect is, I do think his time spent may
7 not have been perfect. It's a skill, of course, to know to be able
8 assess reasonable time. But I do think we will finish this case
9 tomorrow, including the Defence case and closing speeches. So I would
10 ask Your Honours to be a little bit indulgent with the accused and allow
11 him to carry on.
12 JUDGE ORIE: Mr. Haraqija, of course, has held positions which
13 allow him to understand and to, I would say, control speeches. I stopped
14 him again here when he went into details which are not assisting the
15 Chamber. I did not want to stop him on the subject necessarily but on
16 the details, especially where he indicated that he would need ten minutes
17 and where until now he has used 15 minutes.
18 Mr. Haraqija, would you please proceed and keep this in mind.
19 MR. KHAN: Your Honour, I don't want to belabour the point, and
20 this is a matter perhaps I can raise in closing. I think the only point
21 he was trying, to make to clarify, is he didn't pay all this himself, he
22 didn't do it himself. He did it with the assistance of the international
23 community. He was simply facilitating in whatever role he had; but, of
24 course, it's the international community that takes a great deal of
25 credit for this rebuilding.
1 JUDGE ORIE: Mr. Haraqija, anything else you would like to add
2 where Mr. Khan has -- well, has interpreted what you intended to say? Is
3 there anything else?
4 THE ACCUSED HARAQIJA: [Interpretation] Your Honours, I sincerely
5 apologise. I respect the interpreters, and due to the interpretation I
6 try to speak in short. I know that the points I've outlined require more
7 than ten or 15 minutes; but if you deem that I should stop here, then I
8 will stop, Your Honours.
9 JUDGE ORIE: I didn't say that. Again, I suggested that you take
10 the next two minutes to conclude your unsworn statement, so if you'd use
11 those two minutes to tell us what you find most relevant.
12 Please proceed.
13 THE ACCUSED HARAQIJA: [Interpretation] Thank you.
14 I mentioned the pre-status standards, six standards, and for the
15 sole reason because these standards included freedom of movement,
16 security, the Kosova Protection Corps, and so on and so forth. With the
17 cooperation with the general at the time, we drafted the plan, we visited
18 the camps. We invited them to come and visit us to see how the situation
19 was in our municipality, to visit these minorities and to see that the
20 security was at a high level, and they could come back to live in
21 Gjakova. We had the same contacts with the Serb minority. As the
22 chairman of the government, we worked and made efforts for these refugees
23 to come back.
24 In 2004, there was a central government in Kosova. As member of
25 the leadership of the LDK, I did not agree with this idea for all the
1 parties to lead Kosova because someone had to take up the responsibility,
2 and my idea was for opposition and position. So with President Rugova
3 and Fatmir Rexhepi, we persuaded the government for this idea. All the
4 local offices opposed this idea because they wanted to have their
5 representatives in the authorities. Why we did this? As I said, for
6 someone to be held responsible. At that time, our idea won; and after
7 that, I was offered the post of the minister of transport, and then I did
8 not offer this -- I did not accept this post.
9 Later on, I accepted the post of the minister of culture, sport,
10 and youth. Why? In 2004, in Kosova there was a very difficult situation
11 in Kosova as far as cultural heritage was concerned.
12 JUDGE ORIE: Mr. Haraqija, I invited you to focus on matters most
13 relevant for this Chamber, and I gave you two more minutes. You've taken
14 now four, 30 seconds to --
15 MR. KHAN: I --
16 JUDGE ORIE: Mr. Khan, as the Rules say, and as I explained to
17 Mr. Haraqija, the statement is given under the control of the Chamber.
18 I'm exercising this control at this moment --
19 MR. KHAN: Of course.
20 JUDGE ORIE: -- and not starting a major debate on everything I
22 MR. KHAN: No, of course. Your Honour, it is a matter for you
23 and your colleagues, and it's a matter of discretion. Simply, I want to
24 say a few words which I hope will assist you in exercising that
1 Your Honour, it is not needed, in my respectful submission, to
2 guillotine these proceedings. The whole week has been set aside. The
3 matters are relevant in our submission. We will be finished, including
4 the Defence case, by tomorrow. The accused has said he is a young man.
5 I know Your Honour has indicated he's an experience public speaker, but
6 his own words are that this is a nerve-racking experience to be hauled
7 from Kosovo to an international courts, and I would ask that a bit of
8 compassion and understanding are shown.
9 These are relevant matters. He is talking about his appointment,
10 just now, to the minister of culture. It is in that capacity that the
11 Prosecution bring this case in very large measure. So I would ask Your
12 Honours to be a little bit more understanding for the accused. Your
13 Honours, if you think otherwise, of course I will say no more.
14 [Trial Chamber confers]
15 JUDGE ORIE: Unanimously, the Chamber considers that the subject
16 of this statement under Rule 84 bis is such that no further time should
17 be given to Mr. Haraqija to continue.
18 Mr. Khan, of course, if there are matters which you consider of
19 such importance, of course, you can call Mr. Haraqija to the stand to put
20 further questions to him in relation to his --
21 MR. KHAN: I'm grateful.
22 JUDGE ORIE: -- political background and his career.
23 Thank you, Mr. Haraqija.
24 Mr. Dieckmann, have I properly understood that Mr. Morina is not
25 seeking to make a statement under Rule 84 bis?
1 MR. DIECKMANN: Yes, Your Honours, this understanding is correct.
2 Thank you.
3 JUDGE ORIE: Then, Mr. Saxon, you had two administrative matters.
4 I take it you want to deal with them before you call your first witness.
5 Now, the Chamber is aware that there is an issue about the first
6 witness you would like to call, especially in terms of that he doesn't
7 seek any protection; at the same time, that it might be wise to hear
8 small portions of his evidence in private session because it's not the
9 protection of this witness but it's rather the protection of the
10 protected witness in the Haradinaj case which requires such a cautious
11 approach. That is one of the issues the Chamber is aware of.
12 The Chamber is aware of the exchange of views of the parties in
13 respect of this. I don't know whether this was one of your subjects; but
14 if so, then, the Chamber has decided that in private session the details
15 such as where the witness lives and what his name is could be dealt with
16 not in a public setting.
17 MR. SAXON: Thank you very much, Your Honour. With all due
18 respect, I recently received an e-mail suggesting that perhaps a motion
19 should be made for a pseudonym, but I'm perfectly willing to do what the
20 Chamber directs me to do, perfectly.
21 [Trial Chamber confers]
22 JUDGE ORIE: Mr. Saxon, we have further considered the matter now
23 with the Registry; and for administrative technical reasons, I do
24 understand that if we want to conceal the identity of the witness from
25 the public - and that is, of course, not because we want to protect this
1 witness, but mainly because the identity of this witness could reveal the
2 identity of the protected witness who is relatively central in this
3 case - that for those reasons we would need a pseudonym.
4 Now, if you would make an oral application at this moment, and
5 you may refer to the reasons I've just given, that goes quicker I think
6 for an oral application for pseudonym for the witness, then, of course,
7 we'll hear from the Defence whether there's any objection.
8 MR. SAXON: Your Honours, based on the points that Your Honour
9 has just made in the past few moments, the Prosecution would make a
10 motion under Rule 75(A) to permit the first witness to testify with the
11 use of a pseudonym. That would be the only protective measures.
12 JUDGE ORIE: Thank you, Mr. Saxon.
13 Any objection?
14 MR. KHAN: No objection, Your Honour.
15 JUDGE ORIE: Mr. Dieckmann.
16 MR. DIECKMANN: No objection.
17 JUDGE ORIE: Thank you.
18 Then the motion is granted, and the first witness you will call
19 will testify under the pseudonym "Witness 1."
20 Whenever the parties during the examination want to refer to
21 events that might be central to his testimony, they are invited to refer
22 to the country of residence rather than to name the country of residence
23 of Witness 1. The same is true for the city where he lives, so the
24 country and the city where he lives. I take it that it's perfectly clear
25 to all parties where the sensitive issue lies.
1 That was at least one issue, Mr. Saxon. Was there another
2 administrative issue?
3 MR. SAXON: There is, Your Honour, and the Prosecution believes
4 it may be best to move into private session briefly.
5 JUDGE ORIE: We move into private session.
6 [Private session]
11 Page 41 redacted. Private session.
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 JUDGE ORIE: Thank you, Mr. Registrar.
19 Could we have the assistance of the usher to escort Witness 1
20 into the courtroom.
21 MR. SAXON: And, Your Honours, while we're waiting for the
22 witness to appear, the Prosecution has prepared a set of binders for the
23 parties and for Your Honours with the exhibits that the Prosecution will
24 seek to tender in this case. Perhaps they could be distributed now.
25 JUDGE ORIE: Yes. Therefore, of course, we usually have the
1 assistance of the usher who just left the courtroom.
2 MR. SAXON: Sorry.
3 [Trial Chamber confers]
4 [The witness entered court]
5 JUDGE ORIE: Good morning, Witness 1. I call you "Witness 1"
6 because the Chamber has decided that we'll not call you in open court by
7 your own name, not primarily because you were seeking protection but for
8 other reasons. May I, first of all, ask you not to use your own name
9 until and unless it's clear that we are in private or closed session.
10 Witness 1, before you give evidence in this court, the Rules of
11 Procedure and Evidence require you to make a solemn declaration that you
12 will speak the truth, the whole truth, and nothing but the truth. The
13 text will be handed out to you by the usher; but before you make that
14 solemn declaration, I'd like to ask you whether you speak English at such
15 a level that you can follow the proceedings and that you're able to
16 answer questions in the English language?
17 THE WITNESS: I think so, yes.
18 JUDGE ORIE: Yes. Then may I invite you to make the solemn
20 THE WITNESS: All right.
21 I solemnly declare that I will speak the truth, the whole truth,
22 and nothing but the truth.
23 JUDGE ORIE: Thank you. Please be seated, Witness 1.
24 Mr. Saxon.
25 MR. SAXON: Thank you, Your Honour.
1 JUDGE ORIE: Witness 1, you'll now be examined by Mr. Saxon,
2 who's counsel for the Prosecution.
3 Please proceed, Mr. Saxon.
4 WITNESS: WITNESS 1
5 Examination by Mr. Saxon:
6 Q. Good morning, Witness 1.
7 A. Good morning.
8 Q. I also understand that sometimes your hearing is not absolutely
9 perfect, so if you do not completely hear a question that you are asked,
10 please tell me, or if the volume needs to be turned up for your
11 headphones, please inform me, and we will take care of that. All right?
12 A. Yes.
13 Q. One reminder, please, I'd like to ask you during your testimony
14 not to refer to the country where you live and work, and not to refer and
15 not to refer to the city where you live and work. Can we agree on that?
16 A. Yes, I will try my best on that.
17 Q. The other thing I would like to ask you, you and I are now
18 speaking the same language. We're speaking to each other in English.
19 A. Yes.
20 Q. And we need to be careful to assist the interpreters that each
21 person that we don't begin to speak until the other person has stopped
22 speaking; and if you could, perhaps try to pause for a moment between
23 sentences to give the interpreters a minute to -- a moment to catch up.
24 Can we agree on that?
25 A. Yes.
1 Q. Sir, officially, you are still a member of the police in your
3 A. Correct.
4 JUDGE ORIE: Mr. Saxon, would it not be wise, at least in
5 whatever way not known to the public, to establish the identity of the
6 witness, either by a pseudonym sheet or by going into private session;
7 otherwise, we would not know who Witness 1 is.
8 MR. SAXON: Completely my oversight, Your Honour. Yes. We have
9 a pseudonym sheet prepared; and if this could be provided to the usher to
10 give to the witness, I would be grateful.
11 Q. Witness 1, is that your true name on that sheet of paper in front
12 of you?
13 A. Yes, it is.
14 Q. And is the date of birth correct?
15 A. Yes, it is.
16 Q. Thank you very much.
17 MR. SAXON: And, Your Honour, perhaps the pseudonym sheet could
18 become part of the record in this case.
19 JUDGE ORIE: Usually, exhibit numbers are assigned to it.
20 Mr. Registrar, that would be?
21 [Trial Chamber and registrar confer]
22 JUDGE ORIE: Does the Defence wish to have a look at the
23 pseudonym sheet?
24 MR. KHAN: Your Honour, I'm fully willing to accept that it's the
25 correct name.
1 JUDGE ORIE: Yes.
2 Same for you, Mr. Dieckmann?
3 MR. DIECKMANN: I join, yes. Thank you very much, Your Honour.
4 JUDGE ORIE: Mr. Registrar, this would be exhibit number?
5 THE REGISTRAR: Your Honours, this becomes Exhibit Number P1,
6 under seal.
7 JUDGE ORIE: Yes. I take it that there are also no objections
8 against P1; therefore, P1 is admitted into evidence under seal.
9 Please proceed, Mr. Saxon.
10 MR. SAXON:
11 Q. Witness 1, when did you begin your career as a police officer?
12 A. In 1968.
13 Q. And in July of 2007, last year, what position did you hold?
14 A. I was detective superintendent and a head of the witness
15 protection unit for the western part of the country.
16 Q. And was the protected witness in this case one of the persons
17 under the responsibility of your unit?
18 A. Yes, he was.
19 Q. Witness 1, in early July of 2007, was the protected witness
20 scheduled to travel somewhere?
21 A. Yes, he was.
22 Q. And did you drive the witness to the airport?
23 A. Yes.
24 Q. During the drive to the airport, what, if anything, did the
25 protected witness inform you about?
1 A. Yes. He informed me that he received telephone contact and
2 communication by SMS as well as regular phone call from a person he'd
3 known as a journalist.
4 Q. Did the protected witness tell you the name of the journalist?
5 A. Yes, he did.
6 Q. What was that name?
7 A. It's sort of Morina or something like that. I'm not sure about
8 the pronouncement.
9 Q. All right. And did the protected witness inform you of the
10 nature of these telephone communications?
11 A. Yes, he did.
12 Q. Very briefly, can you describe what the protected witness told
13 you at that time.
14 A. He told me that this journalist would like to have a meeting with
15 the protected witness; and the day after this meeting, he suggest that
16 also -- or he told me that minister of culture as well would attend to
17 this meeting.
18 Q. Okay. Did the protected witness inform you why Mr. Morina and
19 the minister of culture wanted to meet with him?
20 A. Yes, because I asked the protected witness why, what was this
21 conversation all about, since my responsibility was his safety and his
22 appearance here in the court. So I was curious and a little bit
23 suspicious about this call, and I asked the protected witness to get back
24 to the journalist and ask him what this meeting was all about.
25 Q. Before we go further, there's a question I forgot to ask you.
1 Were there any particular questions, according to the protected witness,
2 that Mr. Morina asked that caused you some concern?
3 A. Yes. He let the protected witness -- the journalist let the
4 protected witness know that he knows that he's supposed to go down to the
5 Tribunal in The Hague
6 Q. The Tribunal in The Hague
7 A. Yes, the Tribunal.
8 Q. All right.
9 A. And that makes me worry because no one should know that we are on
10 our way down here.
11 Q. All right. If we can turn now to a question I asked you
12 previously, did the protected witness explain why Mr. Morina and the
13 minister wanted to meet with the protected witness?
14 A. No, because the journalist won't talk about the real purpose over
15 the phone, and that made me more suspicious about this meeting.
16 Q. Witness 1, did the protected witness tell you whether he wanted
17 to meet with Mr. Morina and the minister?
18 A. Yes. He was curious about what they want him, and he really
19 likes this meeting to happen.
20 Q. Did he tell you why he was curious?
21 A. No -- yes. He said, "I don't know what they really want and I'm
22 anxious to hear about it."
23 Q. Okay. Witness 1, what concerns, if any, did you have about such
24 a meeting taking place?
25 A. I don't like it because my responsibility was to see that the
1 protected witness really fulfilled his duty and come here to the Tribunal
2 and take the witness-stand. That's the first responsibility. The other
3 one was for his and his family's security before and after this stand.
4 Q. And so -- all right. Did you discuss the situation with your
6 A. Yes, because --
7 Q. With whom did you discuss this?
8 A. The chief constable, who is my chief, and I tell him I don't like
9 this meeting because if there is legitimate reasons, they could tell it
10 on the phone. But since they don't mention what it is all about, I get
11 suspicious that they try to provide or even buy [Realtime transcript read
12 in error "by"] this witness silence; otherwise, they could have tell him
13 what it's all about.
14 JUDGE ORIE: Mr. Saxon, you took a risk by asking the witness
15 with whom did you discuss, instead of what was the position of the person
16 you discussed it with. Well, nothing happened, but I'm just trying to
17 keep you as sharp as possible on the matter.
18 Please proceed.
19 MR. SAXON: And I'm very grateful for that, Your Honour. The
20 point is well taken.
21 Just to note for the record, at page 32, line 13, the word by is
22 spelled b-y and it should be spelled b-u-y.
23 Q. And how did the chief constable react to the idea of this
25 A. He didn't like it at all. He said the police force will
1 not - what do you call? - be at -- let this witness have a meeting who
2 could stop him from going to the Tribunal in Hague. So he said at the
3 first no.
4 Q. Okay. And after you spoke first with the chief constable and
5 received his opinion, did you tell the protected witness how the chief
6 constable felt about this matter?
7 A. Yes. I told him the decision and I told him also that the police
8 cannot allow this meeting to happen because it can interfere with his
9 mission down here. And he was not -- he's not taking this message well
10 because he said, "I certainly like to have this meeting. And if I
11 don't -- can have this meeting, I will not appear in The Hague Tribunal."
12 Q. And when you say, "I will not appear in The Hague Tribunal," the
13 witness was saying, I will not testify; is that correct?
14 A. Oh, that's correct, that's correct. Sorry.
15 Q. And when you received this reaction from the protected witness,
16 did you convey that to the chief constable?
17 A. Yes, I get back to him and said, "We have a big problem here
18 because I can't fulfil my responsibility." And chief constable said,
19 "The only way the police can allow this meeting is that we had to be
20 there, and certainly the Prosecutions -- Prosecutors in Hague had to
21 write a letter saying that we will assist them; otherwise, we don't do
23 Q. Okay. Let's go a little bit more slowly. When you say the chief
24 constable said, "The only way the police can allow this meeting is that
25 we had to be there," what do you mean by that?
1 A. We had to monitoring this meeting; we have to get totally control
2 of the area, the surveillance team; we have to film it as well.
3 Q. Did you have to record it?
4 A. Yes.
5 Q. And then you mentioned something about what the chief constable
6 wanted from the Prosecutors in The Hague. Can you describe that again.
7 A. Yes, because that was the only way that he could let this meeting
8 happen. The Prosecutor had to write a letter to the chief constable
9 saying that they like this meeting to happen and they will have the
10 police assistance for this meeting.
11 Q. Okay. So, in other words, the chief constable wanted a letter
12 from the Office of the Prosecutor?
13 A. Yes.
14 Q. Saying that the meeting could take place if it's monitored --
15 A. Yes.
16 Q. -- by the police?
17 A. Yes.
18 MR. KHAN: Your Honour, I would ask all this evidence is in
19 dispute in various regards that my learned friend not lead at all.
20 MR. SAXON: Your Honour, I wasn't really trying to lead. I was
21 trying to make sure that the English transcript comes up -- is as clear
22 as possible because English is not the witness's first language.
23 MR. KHAN: Your Honour, I understand that. Of course, if
24 clarification is needed, perhaps the question can simply be re-put
25 without trying to summarize what the witness has already said.
1 JUDGE ORIE: Mr. Saxon, you're invited not to lead in chief. As
2 guidance, I would like you to follow the suggestion by Mr. Khan. At the
3 same time, I invite Mr. Khan not to be oversensitive. By leading it is
4 often very practical; but, of, course there are some sensitive issues on
5 which you're invited to be very strict on not leading.
6 I leave it to you, Mr. Khan, to make objections only if really
7 need, and you to be very cautious in this respect. Please proceed.
8 MR. SAXON: Thank you, Your Honour.
9 Q. Eventually, did the OTP -- did the Office of the Prosecutor of
10 this Tribunal provide such a written letter to the police?
11 A. Yes, they did.
12 Q. Prior to the initial meeting, what arrangements or precautions,
13 if any, did you and your police colleagues take?
14 A. We have first at the airport personnel that meet the plane who
15 the journalist arrived with. We checked the other passengers on the
16 plane before and that plane and the plane later, to see if there was any
17 connection that we know of. We followed the journalist from the airport
18 to the town. We have the surveillance team, we have the film team, we
19 have a recording team; and I think at least we were about 30 officers at
20 the place totally.
21 Q. Were you coordinating this effort?
22 A. Yes, I was one of the coordinators.
23 Q. Did the protected witness agree that the meeting would be
25 A. Yes.
1 Q. Can you recall, please, when did the first meeting take place?
2 A. I think it was around the 10th of July.
3 Q. And who was expected to appear for that first meeting, if you
5 A. It was the journalist.
6 Q. Do you know if the minister was ever expected to appear?
7 A. Yes, because we had a request from protected witness that we
8 should book a room for the minister the day two.
9 MR. SAXON: And, again, at page 36 -- actually, I should go more
11 Q. You said "that we should book a room for the minister the day
12 two." What do you mean by "the day two"?
13 A. Oh, for the 11th of July --
14 Q. Okay.
15 A. -- the day after the first meeting.
16 Q. Witness 1, in general terms, where did the first meeting take
18 A. In a hotel.
19 Q. Can you describe how the first meeting was monitored?
20 A. Yes. We had some officers around the lobby area in that hotel,
21 we have a film team outside, and we also have put two microphones to the
22 protected witness.
23 Q. What do you mean by putting two microphones to the protected
24 witness? What do you mean by that?
25 A. There was two microphones. I don't know if I had to go into the
1 details where we placed microphones because it's kind of an operational
3 JUDGE ORIE: Mr. Khan.
4 MR. KHAN: Your Honour, it may assist my learned friend. There's
5 no dispute from the Defence about the surveillance or the recording.
6 There's no dispute. He can just move to the central issues.
7 JUDGE ORIE: Mr. Saxon.
8 MR. SAXON: Thank you very much then. I will move along then.
9 JUDGE ORIE: Yes. It's appreciated, Mr. Khan, that you assisted
10 Mr. Saxon.
11 Please proceed.
12 MR. SAXON:
13 Q. Witness 1, when, if ever, did you see the journalist Morina
14 around the time of the first meeting?
15 A. I actually saw him visually as he come through the doors to the
17 Q. Okay. You mentioned "day two." What happened on day two?
18 A. We changed hotels for the second meeting --
19 Q. Okay.
20 A. -- late that morning, but it's nearby, about 500 metres from the
21 first hotel.
22 Q. Was that the day after the first meeting on the 10th?
23 A. Yes, it was.
24 Q. Okay. And what was your role before and during the second
1 A. My role was the same as on the first meeting, so it was planning
2 and get the surveillance team and monitoring on the right place for the
3 second meeting.
4 Q. Prior to these meetings in July 2007, had you been involved in
5 surveillance and recording conversations before?
6 A. Yes, many times.
7 Q. Was it important that -- let me step back for a minute. And why
8 had you been involved in surveillance and recording conversations many
10 A. Because I was the head of the surveillance unit that concerns
11 kidnapping, blackmailing, and such things in serious crime business.
12 Q. All right. Was it important that the protected witness agree to
13 the recording of the meetings?
14 A. Yes.
15 Q. Why?
16 A. Because when somebody agreed or want his own conversation
17 recorded, that's totally legal in my country, so that's why.
18 Q. All right.
19 MR. SAXON: Your Honours, I see the hour. I was about to turn to
20 an exhibit that might take a few minutes. Would this be the right time
21 to take the first break?
22 JUDGE ORIE: I think it would be preferable to have the break
23 now. But before we take the break could I just, Mr. Khan, verify with
24 you, you said there's no dispute from the Defence about the surveillance
25 or the reporting. What does that include?
1 MR. KHAN: Yes, Your Honour, it wasn't very artfully put.
2 There's no dispute that the exhibit that the Prosecution wish to tender
3 and the transcript is -- well, there's no dispute that a video was
4 obtained and a transcript was prepared. So there was no need to go into
5 details about where the microphones were situated or how many people were
6 located in which particular parts of the hotel.
7 JUDGE ORIE: Yes.
9 (redacted) That's a separate issue
10 which has been ruled upon.
11 JUDGE ORIE: May I then take it that the exhibit you just
12 referred to, that you accept that these exhibits are the result of the
13 audio-recording, and that of other exhibits are pictures of the meetings
14 that were recorded, and do you take any issue with the content of it?
15 MR. KHAN: Your Honour, no. There's simply one issue that's
16 already been litigated in relation to part of it, and it's really the
17 transcript. It's a separate matter, it doesn't concern this witness,
18 it's made later -- it will be made later. But apart from that, no
20 JUDGE ORIE: No dispute.
21 Mr. Saxon, is this clear enough for you to know what is not in
23 MR. SAXON: Yes, it is. Thank you, Your Honour.
24 [Trial Chamber and registrar confer]
25 JUDGE ORIE: We'll then have a break now, and we'll resume at
1 five minutes to 11.00 --
2 MR. SAXON: Your Honour, I'm very, very sorry.
3 JUDGE ORIE: Yes.
4 MR. SAXON: My colleague Mr. Smith has just pointed out there may
5 be a need for a redaction, page 39, line 8, and that that should happen I
6 believe before we take the break.
7 JUDGE ORIE: Yes, that should be redacted.
8 Mr. Registrar, could you prepare a redaction of page 39, lines 7,
9 8, and 9.
10 MR. SAXON: Thank you, Your Honour.
11 JUDGE ORIE: As a matter of fact, line 8 only the first
12 two-thirds. We can leave the last sentence of the observation made by
13 Mr. Khan.
14 I prefer to finalise it before we have the break and then we'll
15 resume at 11.00.
16 [Trial Chamber and registrar confer].
17 JUDGE ORIE: We'll have a break and resume at 11.00.
18 --- Recess taken at 10.34 a.m.
19 --- On resuming at 11.03 a.m.
20 JUDGE ORIE: Mr. Saxon, please proceed.
21 MR. SAXON: Thank you, Your Honour.
22 Q. Witness Number 1, I would like to show you a photograph.
23 MR. SAXON: I'm wondering whether the second exhibit binder could
24 be placed in front of the witness.
25 And, Your Honour, I'm going to ask the witness to look at what is
1 Prosecution 65 ter Exhibit Number 29. It should be at tab 29 and will be
2 in your second binder, and I'd ask that this not be published to the
3 public, please.
4 MR. KHAN: And, Your Honour, again, for the -- hopefully to
5 assist, we can agree, as far as the Defence is concerned, that that
6 picture shows the two people mentioned in the Prosecution's 65 ter list.
7 MR. SAXON: I'm very grateful to Mr. Khan, and would Mr. Khan
8 also be willing to make the same agreement for 65 ter number 30 which is
9 another photograph?
10 MR. KHAN: I would.
11 MR. SAXON: Thank you.
12 Your Honour, if that's the case, I don't need to ask the witness
13 about this -- actually, I do, Your Honour. I'm very, very sorry. I do
14 have one question I need to ask.
15 JUDGE ORIE: Please put the question.
16 MR. SAXON:
17 Q. Witness, if you take a look at what is 65 ter 29, this
18 photograph, do you recognise someone in the photograph?
19 A. Yes, I do. The man to the right on the photo is the protected
21 Q. And can you recognise the place?
22 A. Yes. It is in the lobby where the first meeting took place.
23 Q. Thank you.
24 MR. SAXON: Your Honour, I would now seek to tender this exhibit,
25 please --
1 JUDGE ORIE: Yes --
2 MR. SAXON: -- under seal.
3 JUDGE ORIE: And now you asked these questions only about 29.
4 MR. SAXON: I will ask the same questions for 30 as well.
5 JUDGE ORIE: Yes. Then, first of all ...
6 [Trial Chamber confers]
7 JUDGE ORIE: Before we move any further, Judge Moloto has one
8 further question.
9 JUDGE MOLOTO: Witness 1, are you able to say who the person to
10 the left is?
11 THE WITNESS: No, not on this photo, no, I can't.
12 JUDGE MOLOTO: Thank you.
13 JUDGE ORIE: Mr. Dieckmann, you were on your feet.
14 MR. DIECKMANN: Just for the record, I would like to say that the
15 Defence for Bajrush Morina join the submissions of the Defence of Astrit
17 JUDGE ORIE: Thank you for that.
18 Then, Mr. Registrar, 65 ter number 29 was, although declared not
19 admissible, is not yet in evidence.
20 So, therefore, Mr. Registrar, 65 ter 29 would be?
21 THE REGISTRAR: Exhibit number P2, under seal, Your Honours.
22 JUDGE ORIE: P2 under seal. And from the previous comments, I
23 take it there are no objections -- any further objections, because the
24 whole of the recording, of course, was part of an objection once.
25 P2 is admitted into evidence under seal.
1 Mr. Saxon.
2 MR. SAXON:
3 Q. Witness 1, if you could turn to the next exhibit, please, the
4 next tab.
5 MR. SAXON: Your Honours, this is 65 ter number 30.
6 THE WITNESS: Yes.
7 MR. SAXON:
8 Q. And are you able to recognise the place in this photograph?
9 A. Yes, I am. It's the hotel lobby for the second meeting.
10 Q. Are you able to recognise any of the persons in the photograph?
11 A. No, not really, because there's no good quality on the clearness,
12 so I can't.
13 Q. You say there's no good quality on the clearness. What are you
14 referring to?
15 A. It is so much grey in this photo, it's difficult to hundred per
16 cent said something about --
17 Q. Okay.
18 MR. SAXON: Your Honour, at this time, I would seek to tender
19 into evidence 65 ter number 30.
20 JUDGE ORIE: Under seal, as well, I take it?
21 MR. SAXON: Under seal, please, Your Honour.
22 JUDGE ORIE: Yes. The same is true for this, exhibit on the 65
23 ter list, earlier declared to be not inadmissible.
24 Mr. Registrar, that would be?
25 THE REGISTRAR: Your Honours, this becomes Exhibit P3, under
2 JUDGE ORIE: P3 is admitted under seal.
3 Please proceed.
4 MR. SAXON:
5 Q. Witness 1, prior to the first meeting between the protected
6 witness and the journalist Morina, what, if anything, did the protected
7 witness say about SMS telephone messages?
8 A. For the most telephone or SMS the protected witness received, he
9 immediately tells or show us on the phone, and there was quite a lot of
11 Q. And did the witness tell you or show you who sent those messages?
12 A. Yes.
13 Q. Who was that?
14 A. It's from the journalist.
15 Q. Okay. And did you become aware of the content of one or more of
16 those messages?
17 A. Yes. There was especially one I remember because the protected
18 witness said that he had to book a room for the 11th for the minister of
19 culture, and he would like a hotel with a high standard.
20 Q. Okay.
21 A. And there was also some sort of -- that the minister really would
22 come because I have some suspicion about these arrivals.
23 Q. Can you clarify what you just said.
24 A. Yes. It was kind of confirmed -- he confirmed that the minister
25 really should come day two, because --
1 Q. Okay --
2 A. -- he asked especially for some quality of the hotel.
3 Q. Okay. In such cases, Witness 1, what procedure, if any, would
4 police in your country carry out to preserve such SMS messages?
5 A. Well, we emptied normally the phone to save both the SMS and the
6 telephone traffic.
7 Q. Can you be a little bit more specific. What do you mean when you
8 say we "emptied" the phone?
9 A. We have a kind of operation box that we put on the phone, and we
10 take it out.
11 Q. What then comes out of this box?
12 A. What comes is time, when it was sent, and when it was received,
13 or what kind of number if possible, who sent them, and the text on the
14 SMS as well.
15 Q. Okay.
16 MR. SAXON: If the witness could be provided with binder
17 number 1, I would be very grateful. And if we could turn, please, to
18 what is Prosecution 65 ter number 12.
19 THE INTERPRETER: May the witness's microphone be adjusted so
20 that he speaks into the microphone, please.
21 MR. SAXON: Actually, before we turn to tab 12, Mr. Usher, can
22 you just wait a minute. Please, just wait a minute.
23 Q. You mentioned the procedure that the police would carry out to
24 preserve SMS messages. Was this procedure followed in this case?
25 A. Yes, as I recall, yes.
1 Q. Was a copy of the SMS messages given to the Office of the
2 Prosecutor of this Tribunal?
3 A. As I recall, yes.
4 Q. Okay.
5 MR. SAXON: If we could turn now to Exhibit Number 12, it should
6 be tab 12 in that binder.
7 JUDGE ORIE: Mr. Saxon, very practically, exhibits on this list 7
8 up to and including 23 have been admitted as attachments to a 92 ter
9 statement already. They have, however, not been provided yet with
10 assigned numbers, exhibit numbers.
11 Mr. Registrar, how to proceed? Could you assign ...
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: I suggest the following. Since we're now dealing
14 with 65 ter number 12, that Mr. Registrar assigns a number to it; and to
15 the extent that you will deal with certain exhibits that are already
16 admitted, that immediately Mr. Registrar assigns a number to them. And
17 those exhibits not further dealt with in court, that Mr. Registrar makes
18 an internal memorandum assigning numbers to them, so that, finally, we
19 know where they are on our exhibit list.
20 MR. SAXON: Thank you, Your Honour.
21 JUDGE ORIE: Mr. Registrar.
22 THE REGISTRAR: Your Honours, 65 ter number 12 becomes Exhibit
23 Number P4, also under seal.
24 JUDGE ORIE: P4 under seal. It was admitted already so it's just
25 an administrative exercise now to assign a number to it. P4 under seal.
1 Please proceed.
2 MR. SAXON:
3 Q. Witness 1, could you take a moment, please, read through the
4 English text, these messages, and tell us if any of these messages -- if
5 the contents of any of these messages are familiar to you.
6 A. Many of those was more of a grey thing -- sort, as they have a
7 family aspect, but there is 39.
8 Q. Can we stop there for a moment?
9 A. Yeah.
10 Q. Number 39 comes from the telephone 37744506183?
11 A. Yeah.
12 Q. It says: "Hello my friend! Can you make a hotel reservation for
13 me for the 10th and 11th and for the minister only for the 11th of July?"
14 A. Yes.
15 Q. And the date is the 7th. It appears to be -- appears to be the
16 6th of July, then, of 2007?
17 A. Yes.
18 Q. What do you recall about this message? Why do you recall it?
19 A. I recall it because it confirms that the minister really should
20 come, and also I see under 36 there is this same kind of thing I also
21 have been told about and I recall it well.
22 Q. And after 39, any other messages?
23 A. Yes, 42, it was kind of confirmed as well.
24 Q. For the record, number 42 says, from the same telephone number as
25 before: "One a while ago together. See you there on 10 July." And it
1 appears to be from the 2nd of July.
2 Can you turn the page. Are there any other messages that you're
3 familiar with?
4 A. Yes, 43, and that is what I told you before, that the quality of
5 hotel for the minister was an issue.
6 Q. And for the record, message 43, from the same telephone number,
7 from the 7th of July, 2007, says: "We'll talk on the phone on Monday, or
8 you make a reservation today. Bear in mind, though, that this Haraqija
9 is 'choosey' and wouldn't just accept to stay at any hotel. E-mail the
10 hotel address to me."
11 MR. SAXON: And now that binder can be removed -- actually --
12 yes, that binder can be removed, please.
13 Then if the second binder could be given back to the witness, and
14 if the witness could turn, please, to tab 24H.
15 Your Honours, this will be Prosecution 65 ter 24H.
16 And, actually, Mr. Usher, I'm going to need your assistance for a
17 moment or two with the witness.
21 A. Yeah.
22 Q. -- number 2005/06: 178, and entitled --
23 MR. SAXON: Your Honour, I have misspoken. At page 48, line 20,
24 there is --
25 JUDGE ORIE: To be redacted.
1 MR. SAXON: Thank you.
2 JUDGE ORIE: Mr. Registrar.
3 MR. SAXON:
4 Q. And this is entitled: "Secret wire-tapping of rooms," and it
5 says that: "The Government is handing over this proposition to the
6 Parliament ... on the 16th of March, 2006 ..."
7 Are you following me?
8 A. Yes.
9 Q. And it's from the justice department of your country. And now if
10 the usher could help you, and if you could turn, please, to what is page
11 48 in your language. The page numbers are pretty small, they're up on
12 the right-hand side.
13 MR. SAXON: And this should not be published to the public. It
14 has ERN number 06360579.
15 THE WITNESS: Yes.
16 MR. SAXON:
17 Q. And if you could, please, Witness 1, skim down the page a little
18 bit, and you'll see in the middle of the page, in your version, you'll
19 see a sentence beginning with the words: "Here, the notion ..." or
20 "Here, the idea ..."
21 Do you see that?
22 A. No.
23 Q. With the usher's assistance, I believe I can show you where
24 it is.
25 MR. SAXON: Mr. Usher, will you take that to him?
1 THE WITNESS: Yeah, yeah.
2 MR. SAXON:
3 Q. All right. I'm going to read that sentence and a couple more
4 sentences to you in English.
5 A. Yeah.
6 Q. It says: "Here, the notion 'in secret' means that all people
7 participating in the conversation are unaware of the room being
8 wire-tapped. Should one of the participants be aware of the room being
9 wire-tapped, then it is not a question of secret wire-tapping of rooms,
10 but some other measure for which there is admittedly no explicit support
11 in law but that is not punishable (either) according to chapter 4,
12 section 9a in the Criminal Code."
13 Have you been following me?
14 A. Yes, I have.
15 Q. Earlier today, page 38, lines 16 to 17, you told the Chamber that
16 it's legal in your country to record conversations between two parties if
17 one party agrees to the recording. Do you remember that?
18 A. Yes, I do.
19 Q. My question for you is: Is the concept expressed here in this
20 proposition consistent with how the police in your country carry out
21 surveillance or inconsistent?
22 A. Yes, it is.
23 Q. You didn't listen to my question. You need to just listen to my
24 entire question. I asked you: Is it consistent or inconsistent?
25 A. It's consistent.
1 Q. Okay.
2 MR. SAXON: Your Honour, at this time, I would seek to tender
3 65 ter number 24H and I.
4 JUDGE ORIE: Any objections? No.
5 Mr. Saxon, do you think that there would have been a possibility
6 to resolve 24I where you read one or two pages but instead produce
7 approximately half a wood in paper format? I'm just asking you because I
8 see that we get a hundred pages where you rely on one. Would there,
9 then, have not been any possibility to agree with the Defence that the
10 page you just read is sufficient?
11 MR. SAXON: Yes.
12 JUDGE ORIE: With a cover page, perhaps.
13 MR. SAXON: Yes. And in the language of the witness, it would
14 be, yeah, page 48, Your Honour.
15 JUDGE ORIE: Yes, I do understand. But my question is: Would
16 there not have been another solution than to just present us with hundred
17 pages where 98 pages are totally superfluous?
18 MR. SAXON: I take your point, Your Honour, yes.
19 JUDGE ORIE: Then you're invited to reorganize this exhibit in
20 such a way that the relevant pages are where we can then admit them; that
21 is, cover page and the relevant page you just read from.
22 [Trial Chamber and registrar confer]
23 JUDGE ORIE: Mr. Saxon, we combine the two exhibits, 24H and I,
24 with, as a matter of fact, 24H being the translation of the relevant
25 portion of 24I. So we'll ask Mr. Registrar to assign a number to the two
1 of them, and then you're invited to just limit the non-English version in
2 such a way that it doesn't take a hundred pages.
3 MR. SAXON: Thank you, Your Honour.
4 JUDGE ORIE: Mr. Registrar.
5 THE REGISTRAR: Your Honour, 65 ter 24H and the relevant portion
6 of 24I will become Exhibit Number P5, under seal.
7 JUDGE ORIE: P5 is admitted under seal.
8 Please proceed.
9 And, Mr. Saxon, we'll hear from you what pages you exactly now
10 are tendering in the original language.
11 MR. SAXON: Yes, Your Honour, I will.
12 JUDGE ORIE: Yes. Please proceed.
13 MR. SAXON: Your Honours, at this time, I have no further
14 questions for this witness.
15 JUDGE ORIE: Thank you, Mr. Saxon.
16 Witness 1, you'll now be cross-examined by Defence counsel, but I
17 do not know whether they have agreed on the sequence.
18 Mr. Dieckmann, will you be the first one to cross-examine the
20 MR. DIECKMANN: Yes, Your Honours. We agreed that I will take
21 the lead with this witness.
22 JUDGE ORIE: Yes.
23 Mr. Witness 1, you'll now be cross-examined by Mr. Dieckmann,
24 who's counsel for Mr. Morina.
25 Please proceed.
1 Cross-examination by Mr. Dieckmann:
2 Q. A very good morning --
3 A. Morning.
4 Q. -- Witness 1. My name is Jens Dieckmann. I'm Defence counsel
5 for Mr. Bajrush Morina, and I have a couple of questions for you. First
6 of all, I also would like to stress if you have any problems to
7 understand my questions, please indicate it immediately and I could
8 rephrase or repeat them.
9 Witness number 1, you've been responsible as a police officer for
10 the Witness Number 2, it's true?
11 A. Yes.
12 Q. Since when have you been responsible, could you just illustrate
14 A. I don't know exactly, I don't recall, but it's several months
15 before his travel down to the Tribunal.
16 Q. Thank you. You did it together with other colleagues, or have
17 you been the only one?
18 A. Other colleagues.
19 Q. You have been the first contact for the protected witness in
20 cases of problem?
21 A. Yes.
22 MR. DIECKMANN: Your Honours, I would like to go in private
23 session because I would like to refer to colleagues and as would be
25 JUDGE ORIE: We turn into private session.
1 [Private session]
11 Pages 72-78 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session.
20 JUDGE ORIE: Thank you, Mr. Registrar.
21 Please proceed, Mr. Dieckmann.
22 MR. DIECKMANN:
23 Q. In the meanwhile, we received a so-called proofing notice from
24 the Prosecution from the 6th of September, and I may summarize it where
25 it's stated that: "The protected witness suggested to you that perhaps
1 they wanted to prevent him from testifying," end of my summary of
2 quotation. Do you remember this statement?
3 MR. SAXON: Excuse me.
4 JUDGE ORIE: Mr. Saxon.
5 MR. SAXON: Very sorry to interrupt, but just so I could follow
6 along with my colleague, could he tell me which page, which paragraph
7 he's referring to.
8 MR. DIECKMANN: I'm sorry, yes.
9 MR. SAXON: I'm sorry. I've now found it. It is the fourth
11 MR. DIECKMANN: Yes.
12 MR. SAXON: I'm wondering whether a copy could be provided to the
13 witness, Your Honour. I have brought multiple copies in case the witness
14 would like to follow along.
15 JUDGE ORIE: Mr. Dieckmann, any objection against the witness
16 being provided with a copy?
17 MR. DIECKMANN: No objections. It is just one sentence I would
18 like to ask him, but, of course --
19 JUDGE ORIE: Okay. Then let's proceed.
20 MR. DIECKMANN:
21 Q. Today you testified, and I refer to page 31, line 7 of the
22 provisional transcript, and I may quote: "The journalist let the
23 protected witness know that he's supposed to go down to the Tribunal in
24 The Hague
1 So from your testimony today, it seems that Bajrush Morina should
2 have a qualified knowledge about that what should happen in The Hague
3 would like to ask you what is the truth?
4 A. Because when we would travel down with a protected witness, it
5 was for a meeting with the Prosecutors down here. It wasn't actually
6 for -- to appear here in the Tribunal court. And that's why I was a
7 little bit suspicious that it has been a leak that he will be going down
8 The Hague
9 Q. Did the protected witness explicitly said that Bajrush Morina has
10 known that he is a witness in The Hague?
11 A. No. As I recall he said, "As I know, you are travelling down to
12 the Tribunal in Hague." That's what I recall from this conversation.
13 Q. Thank you. As a result of this conversation with the protected
14 witness in the beginning of July 2007, you spoke to your superiors you
15 told us?
16 A. Yes.
17 Q. And, first of all, your superiors refused to give in the wish of
18 the protected witness to have this meeting; true?
19 A. Yes.
20 Q. And the immediate and first reaction of the protected witness was
21 that he told you that he would not testify if the meeting did not take
23 A. That's correct.
24 Q. And, finally, your superiors accepted?
25 A. After he had received a letter from the Prosecutors down in
1 Hague; otherwise, it had -- the meeting wouldn't go on.
2 Q. So, if the Prosecutor had disagreed, the superiors of you would
3 not have accepted the meeting?
4 A. No. There would be no meeting.
5 Q. So we can summarize in the end, there was a condense [sic] of the
6 Prosecution of the ICTY, your superiors, and the witness that this
7 meeting could take place?
8 A. Yes.
9 Q. The protected witness was curious you said?
10 A. Yes.
11 Q. And he was not afraid from your memory?
12 A. No. Why I remember that is when I told him the police chief
13 constable would not allow this meeting for safety and such, the protected
14 witness said, "Hey, if there is something dangerous around this, they
15 wouldn't have called me first," so that's why I can refer to that he was
16 not afraid.
17 Q. And being responsible for the surveying measures that had taken
18 place on the 10th of July and the 11th of July, have you had a chance to
19 listen to the recordings?
20 A. No, because that was on a language that I don't know nothing
21 about. So I just heard the quality and that's good enough for me.
22 Q. And you have seen the video?
23 A. Just some results of it, not the whole.
24 Q. But have you been in the moment on the 10th and 11th of July
25 participating in the surveying measures and visiting what happened?
1 A. Just for some seconds, and then I get back because we didn't let
2 anyone know that we were around.
3 Q. From your long-term experience as a police officer being occupied
4 with protective measures like this, do you agree with me that audio
5 recordings of private conversations basically constitute a violation of
6 the right of privacy of a person?
7 A. Yes.
11 Q. I'm sorry, I'm sorry. Due to your experience and knowledge, it
12 was not necessary to have an order of a court to allow you this under the
13 law of your country?
14 A. Not that specific meeting because --
15 JUDGE ORIE: Mr. Saxon --
16 THE WITNESS: -- we had no criminal case against any one of
17 those. If that had been the matter, then we have take -- have decisions
18 from the prosecutor and the court.
19 JUDGE ORIE: Mr. Saxon.
20 MR. SAXON: Very sorry to interrupt. The country of the witness
21 is referred to in page 66, line --
22 JUDGE ORIE: Yes. If you just refer to the page and then --
23 MR. DIECKMANN: Sorry.
24 JUDGE ORIE: -- ask for a redaction.
25 MR. SAXON: Page 66, line 8.
1 JUDGE ORIE: 66, line 8 to be redacted.
2 MR. DIECKMANN: I'm sorry for this. Thank you.
3 JUDGE ORIE: Yes.
4 MR. DIECKMANN:
5 Q. In the proofing note from 6 September 2008 and also today, you
6 refer, explaining us the legal basis for the police actions to
7 Prosecution Exhibit 24, I think, I, where the leading principles of the
8 law of your home country for this kind of bugging should be expressed.
9 Witness Number 1 --
10 JUDGE ORIE: Yes.
11 MR. SAXON: I'm sorry. I think, at this point, it would be
12 helpful to the witness to have his proofing note in front of him. We're
13 getting into a technical area.
14 MR. DIECKMANN: Sorry.
15 JUDGE ORIE: A copy of the proofing note may be provided to the
17 MR. SAXON: And if my colleague could indicate to the witness
18 what paragraph he is referring to.
19 JUDGE ORIE: Yes.
20 MR. DIECKMANN: I refer to page 2 and the fourth paragraph from
22 JUDGE ORIE: Perhaps, since it becomes a legal debate rather than
23 a witness examination, the Chamber might be interested in having a copy
24 as well.
25 MR. DIECKMANN: Thank you, Your Honours.
1 [Trial Chamber and registrar confer]
2 MR. DIECKMANN: And perhaps --
3 MR. SAXON: Your Honours, would the Chamber like to mark this for
4 identification in some way so there's a record of it?
5 JUDGE ORIE: We'll see how it will be used and then consider
6 marking it for identification.
7 MR. DIECKMANN:
8 Q. I refer especially to the sentence, I may quote: "It is not
9 against the law in GN's country to record conversations in this manner as
10 long as one of the persons involved in the conversation knows it is being
11 recorded. Witness 1 confirmed that this principle is expressed in
12 Prosecution Exhibit 24I."
13 Witness number 1, are you aware that this reference you've made
14 is just a government proposition and not a law?
15 A. Yes. But it's the kind of opposite, because it says there is no
16 support from law to convict somebody to record his own conversation. So
17 it's not against the law, simply.
18 Q. But, finally, you agree with me --
19 MR. DIECKMANN: Sorry.
20 JUDGE ORIE: Yes. I'm looking at one of the previous questions
21 and the answers given to that.
22 Witness 1, a question was put to you earlier, and I'll read it
23 literally to you.
24 "From your long-term experience as a police officer being
25 occupied with protective measures like this, do you agree with me that
1 audio-recordings of private conversations basically constitute a
2 violation of the rights of privacy of a person?"
3 And your answer was: "Yes."
4 THE WITNESS: I have to read what your question is.
5 Yes. I thought the question was about the privacy, that is a law
6 against integrity and such things, that's why I answered yes.
7 JUDGE ORIE: Yes, because you now tell us that you consider it
8 not to be illegal, and at the same time you tell us that it basically
9 constitutes a violation of the right of privacy of a person.
10 My first question would be: Focusing on the present situation,
11 whose privacy would be violated or whose right of privacy would be
12 violated in the present context?
13 THE WITNESS: It's easy for me if I can express. There is two
14 things concerning this matter with monitoring with -- and recording this
15 kind of conversation. (redacted)
19 THE WITNESS: [Overlapping speakers]... then you have to have
20 decision from prosecutor and court. But in this case, there was no cause
21 because this matter was up to the department of justice in my home
22 country, concerning if somebody broke a law intend to attempt the
23 witness. (redacted)
10 THE WITNESS: Now we have a situation that we had no suspicious,
11 no criminal case against anyone for that department have tell us. So now
12 it was concerning the protected witness's safety and his wishes to record
13 this conversation, and that is legally no problem in my home country. I
14 can't go into -- I couldn't express myself --
15 JUDGE ORIE: Mr. Dieckmann, this is what happens if you ask legal
16 opinions from a witness.
17 Please proceed.
18 MR. DIECKMANN: I'm sorry. I just have two final questions
19 regarding this matter, if I'm allowed.
20 Q. Witness Number 1, do you agree with me that in July 2007, there
21 was no provision in the legislation, in the law of your country allowing
22 audio-recordings of private conversations, secret wire-tapping of rooms,
23 and bugging of persons, no written law passed by the parliament?
24 A. There was no law against it, no.
25 Q. Thank you. And last question to this aspect --
1 JUDGE ORIE: That's not an answer to the question. Mr. Dieckmann
2 is interested to know whether there was any law which would give a legal
3 basis for such operations. You said there was no law prohibiting it.
4 THE WITNESS: No.
5 JUDGE ORIE: May I take it that this included that apart from
6 there being no law prohibiting it, that there was also no law providing a
7 legal basis for such wire-tapping?
8 THE WITNESS: No. As far as I know, I just referred to the law
9 text that I had before me here, there is no law support to convict anyone
10 recording his own conversation.
11 JUDGE ORIE: Yes. Now, whether it's a criminal offence is again
12 another matter.
13 THE WITNESS: Yeah.
14 JUDGE ORIE: But, Mr. Dieckmann, please proceed.
15 MR. DIECKMANN: Thank you, Your Honours.
16 Q. So you could confirm that these audio-tapes and the videos have
17 been produced under the rules of surveying the security of person not as
18 a part of the criminal procedure?
19 A. Yes, that is correct.
20 Q. Thank you very much. And it's correct that you handed over this
21 material you have recorded to the ICTY Prosecutor.
22 A. Yes.
23 Q. Did you do it voluntarily or did the Prosecutor from the ICTY ask
24 you to give them the material?
25 A. I asked them if they want this recording sent down here, because
1 we -- all the material was played into CD, four of it. And I ask the
2 Prosecutors down here if they like it to send over it, and they say,
3 "Thank you. Immediately, please." And I travel myself to the airport
4 and hand it over to a captain on a KLM flight, and the Prosecutors or
5 investigators down here meet the aeroplane in Amsterdam, Schiphol.
6 Q. Did you hand over the material with special conditions of
8 MR. SAXON: Objection, Your Honour.
9 JUDGE ORIE: Mr. Saxon.
10 MR. SAXON: What's the relevance of this question to these
12 JUDGE ORIE: Mr. Dieckmann, if you want to explain anything which
13 might influence the witness in his answer, then we would have to ask the
14 witness to leave the courtroom; but if you can explain without any such
15 fact, then please do so.
16 MR. DIECKMANN: We are referring to the point that this material
17 was used later on in the proceeding against our clients, and we are
18 interested in the conditions under what this material was handed over to
19 the Prosecution and which knowledge the Prosecution has had about the
20 nature and the origin of this material.
21 JUDGE ORIE: The witness may answer the question.
22 Would you please tell us whether any conditions were --
23 THE WITNESS: Yes.
24 JUDGE ORIE: -- put by the Office of the Prosecution, and
25 conditions put by you to the Office of the Prosecution, when you handed
1 over these materials?
2 THE WITNESS: There was, as I said, four CDs packed in each
3 plastic and was taped and in a package, and I showed them to the captain
4 on the KLM
5 JUDGE ORIE: Witness 1, it is about conditions.
6 THE WITNESS: Okay.
7 JUDGE ORIE: Conditions such as use it only on Wednesdays or
8 whatever conditions you added to the hand-over of this material.
9 THE WITNESS: No. I call -- can I say the name of the
11 JUDGE ORIE: Investigator of the Tribunal?
12 THE WITNESS: Yeah.
13 JUDGE ORIE: Yes, I don't think that there is any problem, yes.
14 THE WITNESS: It was a man called Barney, and I called him and I
15 said, They are on the way," and he will meet the aeroplane at the
16 Schiphol. So it goes from me to the captain to the Barney, and then I
17 don't know anything else about it.
18 JUDGE ORIE: Yes. No further conditions like use it only for
19 this purpose or use it only for that?
20 THE WITNESS: No, no, no.
21 JUDGE ORIE: Please proceed, Mr. Dieckmann.
22 MR. DIECKMANN:
23 Q. May I conclude that you did not inform the ICTY Prosecutors about
24 the nature of or the -- the nature of this material, that this material
25 was produced only in the procedure of protecting the security and not
1 being part of a criminal procedure?
2 A. Yes. There was just -- because I didn't listen to the material.
3 I said, This is for you, we don't need it, we have no criminal case in my
4 country. So it's yours, do what you like."
5 Q. You told the ICTY Prosecutors that this -- that there is no
6 criminal procedure in your country?
7 A. Yes.
8 Q. Thank you. Did you get informations from the ICTY Prosecution
9 that the contempt procedure was initiated at the ICTY?
10 A. I have to read.
11 Yes. I read the letter down to my chief of constable that I
12 require that this meeting would take place, so I have no problem with
14 MR. DIECKMANN: I don't have any further questions.
15 JUDGE ORIE: Thank you, Mr. Dieckmann.
16 Could I seek clarification of the last answer. The question was
17 whether you got information from the ICTY Prosecution that the contempt
18 procedure was initiated at the ICTY.
19 You said: "Yes. I read the letter down to my chief ..."
20 What letter are you referring to?
21 THE WITNESS: I'm referring -- maybe I don't understand the
22 contempt procedure on the question before. I understand your question if
23 I know that the Prosecutors down here would let this meeting happen, and
24 that's my --
25 JUDGE ORIE: No. That's clear there is a misunderstanding.
1 MR. DIECKMANN: I'm --
2 JUDGE ORIE: The question was whether - and the question was put
3 to you without any time-frame - whether you were aware that proceedings,
4 which I understand to be investigation and then prosecution, for contempt
5 of court - that is, in this case, the suspicion that there was
6 interference with witnesses - had been initiated?
7 THE WITNESS: Yes, I suppose so, because when I talked to the
8 Prosecutor witnesses [sic], I said I don't understand the language, and
9 he give me the information that there was something in this recording
10 that would have sort of stopped his witness and -- but I don't get into
11 details. That's something for the Prosecutors down here, so --
12 JUDGE ORIE: Was that after you'd given the material or before
13 you had given the material?
14 THE WITNESS: It's before.
15 JUDGE ORIE: Yes. Was it after the meetings had taken place or
16 before the meetings on the 10th and the 11th of July had taken place?
17 THE WITNESS: After the meeting.
18 JUDGE ORIE: So between the meetings when everything was recorded
19 and before giving it to the Prosecutor's office at the ICTY, you informed
20 them about the content. Is that how I have to understand your answer;
21 that is, that there was in the discussion about, as you said, something
22 in this recording that would sort of stopped this witness. Is
23 that correct?
24 THE WITNESS: Yes, sort of.
25 JUDGE ORIE: Did they then inform you about whether they would
1 proceed against these persons, whether they intended to investigate, or
2 whether they intended to prosecute?
3 THE WITNESS: My -- as I recall it, they were interested in and
4 listen to this record and then come back. So there was no clearance that
5 they should have a case as I recall, but they certainly like to listen to
6 the recording.
7 JUDGE ORIE: Thank you for those answers and clarification of the
8 last question and answer that was put to you by Mr. Dieckmann.
9 Mr. Khan, any questions for the witness?
10 MR. KHAN: Yes.
11 Cross-examination by Mr. Khan:
12 Q. Good afternoon, Witness.
13 A. Good afternoon.
14 Q. You'll be glad to know I have only a few questions, so hopefully
15 you can go home.
16 A. Yeah.
17 [Trial Chamber and registrar confer]
18 JUDGE ORIE: Before we continue, Mr. Khan, and I apologise for
19 interrupting, the LiveNote technical issue has been resolved. The
20 settings are now as they should be. But most likely you would have to
21 restart LiveNote to get these new settings on your screens; otherwise, it
22 will still be the old situation.
23 MR. KHAN: I'm grateful, Your Honour.
24 JUDGE ORIE: Please proceed.
25 MR. KHAN:
1 Q. Witness, you've told the Court that your overriding aim in all of
2 this was to ensure that the witness would come to the court here in The
3 Hague and also ensure that his family was protected. That's correct,
4 isn't it?
5 A. Yes, it is.
6 Q. And in discharging these functions, you also knew that he was
7 protected by order of this Court; you knew that?
8 A. Yes, I did.
9 Q. I suppose, being a very experienced police officer and the head
10 of your witness scheme, you would have seen the terms of the protective
11 order issued by the Trial Chamber of this Court?
12 A. Yes.
13 Q. You had misgivings about the meeting that the witness was so keen
14 to have; that's fair, isn't it?
15 A. Yeah.
16 Q. And you discussed your anxiety with superiors within your
17 ministry and your immediate superior; that's right, isn't it?
18 A. Yes.
19 Q. And this meeting was conditioned. According to your superior,
20 the condition for it to go ahead was the permission of the Prosecutor of
21 this Tribunal?
22 A. Yes.
23 Q. The order of protection was not issued by the Prosecutor; you
24 know that, don't you?
25 A. Sorry, the last question?
1 Q. The order giving protective measures to this particular witness
2 was not something simply requested by the Prosecutor; it was an order of
3 a Trial Chamber. You are aware of that, aren't you?
4 A. Yes.
5 Q. And your responsibility, I presume, was to ensure the
6 Trial Chamber's order was fully honoured and respected? I'm sorry --
7 A. Yes.
8 Q. Yes. May I ask you, why didn't you go to the Trial Chamber and
9 ask the Trial Chamber for permission to commence this surveillance?
10 A. The reason why is that when we come here the first week in July,
11 the only one I met was Prosecutor and investigators or witness protection
12 people down here. So I didn't know no one else to contact when this
13 matter comes up. So it's personal contact, nothing else.
14 Q. Yes, that's very candid. Thank you.
15 When you spoke to the Prosecution and told them about the
16 conversation between Mr. Morina and the protected witness, the
17 Prosecution were similarly concerned; is that fair?
18 A. Yes.
19 Q. Did, in fact, they tell you that they were concerned that there
20 had been a lot of witness intimidation in this case and they thought that
21 a similar attempt may be tried now in relation to this protected witness?
22 A. You know, before this meeting was going on, we didn't exactly
23 know. It was just suspicions we have, and it was unnaturally
24 communication that get us on this trial. So we didn't know actually, but
25 we suspected.
1 Q. And that's what I'm going towards. You suspected -- let me
2 rephrase it. Just one moment.
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: I'm listening and Mr. Registrar is always listening.
5 MR. KHAN: I'm grateful, Your Honour.
6 Q. When you had conversations with the Office of the Prosecution
7 here in The Hague
8 protected witness, is it fair to say that the Prosecution thought that an
9 attempt may be in the offing --
10 MR. SAXON: Your Honours.
11 JUDGE ORIE: Yes.
12 MR. SAXON: I believe this question is calling for a lot of
13 speculation, Your Honour, the way it's phrased right now.
14 MR. KHAN: Well, Your Honour, I can rephrase it. In my
15 respectful submission, before you rule, I'm -- my question is predicated
16 upon the conversation the witness says in evidence he had with the OTP.
17 JUDGE ORIE: Mr. Khan, if you say you can rephrase it, let's do
18 it, so then --
19 MR. KHAN: I'm grateful.
20 Q. Forgive me, Witness, for the bad question.
21 The Prosecution told you, did they not, that they were concerned
22 that there may be an attempt to intimidate this protected witness that
23 was in your care? That's the truth, isn't it?
24 A. No. They were curious about this meeting as well. No one
25 actually said something straightly out because we didn't know; but there
1 was interest in this meeting, that's for sure.
2 Q. Thirty people were involved to satisfy your curiosity; is that
4 A. No. It was because we didn't know. It had to be -- since the
5 police said yes to the Prosecutor's request about this meeting, we had to
6 take measures. Nothing whatsoever happened during this meeting. That's
7 why we -- it was a lot of people surrounding this area.
8 Q. You said earlier, and perhaps I misunderstood you, that in your
9 country --
10 A. Yes.
11 Q. -- if this -- and correct me if I'm wrong. I think it was page
12 69 or thereabouts under the original LiveNote transcript. But you said
13 that if this had been a criminal case (redacted)
20 MR. KHAN:
21 Q. If this -- if you had suspicions and this had been a witness in
22 your home country, would you have sought an order from a Trial Chamber in
23 order to commence this video and audio surveillance?
24 A. Yes. That's why we take contact with the justice of department,
25 just to see that we don't have a criminal case in this.
1 Q. Yes.
2 MR. KHAN: I'm very grateful. Thank you.
3 JUDGE ORIE: No further questions, Mr. Khan?
4 MR. KHAN: Your Honour, no.
5 JUDGE ORIE: Mr. Saxon, any need to further examine the witness?
6 MR. SAXON: Just briefly, Your Honour, if I may.
7 JUDGE ORIE: Yes, please.
8 Re-examination by Mr. Saxon:
9 Q. Witness 1, my colleague just asked you the following question:
10 "If you had suspicions and this had been a witness in your home country,
11 would you have sought an order from a Trial Chamber in order to commence
12 this video and audio surveillance?"
13 You answered: "Yes. That's why we take contact with the justice
14 department, just to see that we don't have a criminal case in this."
15 Can you explain that a little bit more, please. Did you or your
16 office contact the justice department of your country for advice in this
18 A. Yes, by the chief constable get to the national board and then to
19 the justice of department, just to see that The Hague Tribunal is not a
20 court in the law of my home country's meaning.
21 Q. Okay. And that was confirmed by the justice department of your
23 A. Yes.
24 Q. Okay. My learned colleague asked you a few minutes ago, he asked
25 you whether 30 people were involved in surveillance of these meetings in
1 order to satisfy your curiosity. Can you refresh our memories again,
2 what were your two responsibilities in this matter?
3 A. One was to see that the protected witness fulfil his duty and
4 give testimony at the Tribunal in Hague.
5 Q. You need to move closer to the microphone.
6 A. All right. That was the first responsibility. The second one is
7 his and his family's safety before, under, and after this statement in
9 Q. And is that why you felt you needed a large team of people to
10 carry out the surveillance?
11 A. Yes, because we didn't know what this was. It was an attempt to
12 get the protected witness forward, in the open, and maybe hurt him in any
13 way, because we had to take all precautions. We are this hundred per
14 cent. That's why.
15 Q. What do you mean, "We are this hundred per cent"?
16 A. You have to be a hundred per cent sure that nothing is happening
17 to the witness; and since we agreed to the meeting and take him to the
18 meeting, we had to make sure nothing happened to him.
19 Q. And the witness understood this as well?
20 A. Yes, of course.
21 Q. Just one more question, and this is really just an adjustment of
22 the transcript.
23 A few minutes ago the Presiding Judge, Judge Orie, on page 75,
24 line 6 -- excuse me, lines 3 to 4, asked you whether you were aware
25 whether this Tribunal was bringing contempt proceedings in this matter.
1 And you said, you answered at line 6: "Yes, I suppose so. When I spoke
2 to Prosecution witnesses ..." and then you said, "I didn't understand the
3 language, so he gave me information."
4 Were you referring to Prosecution witnesses or someone else? Did
5 you speak with Prosecution witnesses in this case?
6 A. No, no, no. I had to misunderstand something.
7 Q. Who were you referring to when you said "I spoke to
8 Prosecution ..."
9 A. Investigators.
10 Q. Ah, okay. Thank you.
11 MR. SAXON: Your Honour, no further questions.
12 JUDGE ORIE: Thank you, Mr. Saxon.
13 [Trial Chamber confers]
14 Questioned by the Court:
15 JUDGE ORIE: I have one question or a short series of questions
16 to you, Witness 1.
17 You earlier said that if there would be a criminal case, you
18 would have sought an order or permission by the court under your domestic
19 law to engage in an exercise as you did.
20 Now, if I understood you well, we are here in a situation in
21 which it is considered a possibility on the basis of little information,
22 the information being that the protected witness, was aware that someone
23 knew that he would travel to The Hague.
24 Would that create already a criminal case for which you would
25 seek a court order, or would that be so much in the initial stages where
1 the suspicion had only a limited basis that you would first further
2 explore the suspicion? Could you tell us what approximately in your
3 system would apply?
4 A. If this has been against a court in my home country, then, as we
5 did now, we check with the prosecutors and my chief, do we have a case;
6 and if that was it, we have taking permission from prosecutors and the
7 court to have this recording.
8 JUDGE ORIE: Yes. And would you consider here to be sufficient
9 information available to have a case?
10 A. Yes.
11 JUDGE ORIE: Yes. And you mean by "a case," a suspicion
12 sufficiently solid to proceed the investigations?
13 A. Yes.
14 JUDGE ORIE: Is that what you call "have a case"?
15 A. Yes.
16 JUDGE ORIE: So reason to proceed?
17 A. Yeah.
18 JUDGE ORIE: And to find further evidence?
19 A. Yes.
20 JUDGE ORIE: Yes.
21 One final question. In order to have a case, is there a need
22 that the offence has already been committed, or would having a case also
23 include a situation in which there is a risk or a chance, a relevant
24 chance, that the offence will be committed?
25 A. I have to look.
1 There's a risk. If there is a risk, we --
2 JUDGE ORIE: That is sufficient to have a case?
3 A. Yeah.
4 JUDGE ORIE: Thank you for those answers.
5 Have the questions of the Bench triggered any need to put further
6 questions to the witness?
7 If not, Witness 1, this concludes your testimony today. I'd like
8 to thank you very much for having come and having answered the questions
9 of the parties and of the Bench. You are excused. I wish you a safe
10 trip home again.
11 THE WITNESS: Thank you. Sorry for my English.
12 JUDGE ORIE: No, there's no reason I would say to apologise.
13 [The witness withdrew].
14 JUDGE ORIE: I think it is time for a break. We'll have a break
15 and we'll resume at five minutes to 1.00.
16 --- Recess taken at 12.33 p.m.
17 --- On resuming at 1.00 p.m.
18 JUDGE ORIE: Before we continue, a few procedural matters. The
19 first one, as the parties are aware of, the request for certification is
20 denied by the Chamber; that means that the Chamber has decided to deny
21 that. The reasons will be given in an oral presentation of this
22 decision, including reasons then, most likely tomorrow.
23 Further, the Chamber, I think, needs all of its breaks to keep a
24 close eye on request for reconsideration. I haven't read them yet. I do
25 see that one or two such requests are pending. We'll read them and then
1 we'll see how to proceed with those requests.
2 Finally, the proofing notes of Witness 1, there was a request to
3 have it marked for identification. The Chamber doesn't really see at
4 this moment a need to do that because everything that was put to the
5 witness was read out to him. So, unless the parties would make further
6 submissions why it is necessary to have this marked for identification,
7 the Chamber will not proceed as suggested and leave it as it is.
8 Mr. Saxon, your next witness.
9 MR. SAXON: Thank you, Your Honour. The Prosecution will now
10 call Witness Number 2.
11 JUDGE ORIE: Yes, and he will testify in closed session?
12 MR. SAXON: No --
13 JUDGE ORIE: No, not in closed session --
14 MR. SAXON: No, Your Honour.
15 JUDGE ORIE: -- but I think it was pseudonym and --
16 MR. SAXON: Facial distortion and voice distortion.
17 JUDGE ORIE: -- face and voice distortion.
18 The voice distortion needs some time to prepare. Have these
19 preparations been made?
20 MR. SAXON: I believe so, Your Honour. I see the equipment
22 JUDGE ORIE: Yes.
23 Then, for face and voice distortion, the curtains have to be down
24 as the witness enters the courtroom and then they can be raised again.
25 Mr. Saxon, I think that the 92 ter statements appearing as 65 ter
1 numbers 3 and 4 are admitted into evidence already, although no number
2 has yet been assigned to them.
3 MR. SAXON: That is correct, Your Honour.
4 JUDGE ORIE: So, if you tender them, would you please draw my
5 attention to that so that the number will be assigned to the 92 ter
7 MR. SAXON: Perhaps, while we're waiting, whether binder number 1
8 might be placed on the desk where the witness will be.
9 JUDGE ORIE: Yes, again --
10 MR. SAXON: I'm sorry. The usher is not here.
11 JUDGE ORIE: The usher is not present.
12 That's what they call multi-tasking these days.
13 [The witness entered court]
14 JUDGE ORIE: Good afternoon, Witness. Can you hear me in a
15 language you understand?
16 THE WITNESS: [Interpretation] Yes.
17 JUDGE ORIE: Witness 2, because that's how we will call you in
18 these proceedings, Witness 2, before you give evidence in this court, the
19 Rules of Procedure and Evidence require you to make a solemn declaration
20 that you'll speak the truth, the whole truth, and nothing but the truth.
21 Mr. Usher, could you please hand out the text of the solemn
23 And may I invite you to make that solemn declaration.
24 THE WITNESS: [Interpretation] I solemnly swear that I will say
25 the truth, the whole truth, and nothing but the truth.
1 JUDGE ORIE: Thank you. Please be seated.
2 Witness 2, the protective measures that were earlier granted to
3 you - that is, testimony to be given under pseudonym and face and voice
4 distortion - still do apply. Please take care that in answering
5 questions, that you do not refer to your identity and also not to the
6 state in which you reside or the city in which you live or any other
7 reference to that state in any way.
8 You'll first be examined by Mr. Saxon, who is counsel for the
10 Mr. Saxon, please proceed.
11 MR. SAXON: Thank you, Your Honour. And we have prepared a piece
12 of paper with the witness's details on them, if that could be shown to
13 the witness, please.
14 WITNESS: WITNESS 2
15 [Witness answered through interpreter]
16 Examination by Mr. Saxon:
17 Q. Good afternoon, Witness Number 2. Witness Number 2, can you
18 please take a look at that piece of paper in front of you and let us know
19 whether your name is written there correctly.
20 A. Yes, it is.
21 Q. And is your date of birth written there correctly?
22 A. Yes, it is.
23 [Trial Chamber and registrar confer].
24 MR. SAXON: Your Honour, perhaps this sheet could be shown to my
25 colleagues from the Defence; and if there is no objection, then I would
1 seek to tender it.
2 JUDGE ORIE: The Chamber has looked at it --
3 MR. KHAN: No objection, Your Honour.
4 MR. DIECKMANN: No objection as well.
5 JUDGE ORIE: Mr. Registrar, the pseudonym sheet would be exhibit
7 THE REGISTRAR: Exhibit Number P6, under seal, Your Honours.
8 JUDGE ORIE: P6 is admitted under seal.
9 May I remind everyone that microphones should be switched off
10 when the witness answers the questions.
11 MR. SAXON: I'm wondering if I could ask for the kind assistance
12 of our usher again, if binder number 1 could be placed in front of the
13 witness, please, and if it could be opened to tab number 3, which, Your
14 Honour, was Prosecution 65 ter 3 as well.
15 Q. Witness Number 2, you'll see that there is a statement placed in
16 front of you; it has your name on it. Are you looking at it in the
17 Albanian version, because that is the version that you've signed?
18 A. Yes.
19 Q. And do you recall providing this statement to the Office of the
20 Prosecutor on the 14th of August of last year, 2007?
21 A. Yes, I do.
22 Q. And are the contents of this written statement true and correct?
23 A. Yes, they are.
24 Q. Does this written statement reflect what you would say if you
25 were examined or questioned verbally here in this courtroom?
1 A. Yes, of course.
2 MR. SAXON: Okay. Your Honour, at this time, I would seek to
3 tender this document.
4 JUDGE ORIE: Yes.
5 Could we also ask the witness whether -- you said it's true and
6 accurate. Does it reflect the statement you gave on the 14th of August?
7 THE WITNESS: [Interpretation] Yes.
8 JUDGE ORIE: Thank you.
9 Then, any objections?
10 MR. KHAN: Your Honour, no.
11 JUDGE ORIE: No objections.
12 MR. DIECKMANN: No objection.
13 JUDGE ORIE: Mr. Registrar, I think we only have to, apart
14 from -- I made a mistake, as a matter of fact, and I asked whether you
15 had any objections; whereas, it's admitted already into evidence. So I
16 apologise for that. But it has not yet received a number.
17 65 ter number 3, Mr. Registrar, would receive number?
18 THE REGISTRAR: Exhibit Number P7, under seal, Your Honours.
19 JUDGE ORIE: P7 was already admitted into evidence.
20 Mr. Saxon.
21 MR. SAXON:
22 Q. And, Witness, if you could please turn to the next tab in that
23 binder, which is tab 4.
24 MR. SAXON: Your Honours, this will be 65 ter number 4.
25 Q. And if you could turn to the Albanian version, please, Witness
1 Number 2, this is another statement bearing your name and signature.
2 It's dated the 20th of September, 2007. Do you recall giving this
3 statement to the Office of the Prosecutor?
4 A. Yes, I do.
5 Q. And do you recall that yesterday you reviewed the Albanian
6 version of this statement in my office, in the company of myself and an
7 interpreter and an OTP investigator? Do you recall that?
8 A. Yes.
9 Q. Could you turn to paragraph 23, please. Witness Number 2, is
10 there anything in paragraph 23 that you feel should be corrected?
11 A. Yes. I think something should be added or corrected here.
12 Q. And can you tell us what that correction should be?
13 A. I will try to explain. In the second part of the paragraph
14 reference is made to -- that Haraqija should not contact me because there
15 were three people who would be very important, who could give critical
16 evidence against Haradinaj, one of whom was the protected witness, the
17 second one was Bujar Bukoshi, and the third one Halil Bicaj, former
18 minister of defence.
19 I asked Bajrush whether Bicaj was the third person and he said,
20 "No, I don't think so." At one point, Bajrush told me that Schook told
21 Haraqija that these three can save Haradinaj by not testifying.
22 Q. Witness, I'm going to interrupt you there. So the correction in
23 this paragraph, in the last two or three sentences, it should simply say
24 that, during your meeting, Mr. Morina referred to yourself, Mr. Bukoshi,
25 and an unnamed third person, rather than Mr. Halil Bicaj; is that
2 A. Yes, that's exactly it.
3 Q. And then, at some point, you asked Mr. Morina if Mr. Bicaj was
4 the third person and Mr. Morina said: "No, I did not think so." Is that
6 A. Yes.
7 Q. And then, so with those changes, would this paragraph be correct?
8 A. Yes.
9 Q. And just as a point of clarification, you mentioned earlier
10 something about that: "... Haraqija should not contact me because there
11 were three people ..."
12 Is that what you meant to say?
13 A. No, that's not exactly what I wanted to say.
14 Q. What did you want to say?
15 A. I wanted to say that in the last sentence, where it is said that
16 these three people could save Haradinaj by not testifying, that the name
17 of the third person should not be mentioned as Halil Bicaj because he had
18 said that that was not the third person.
19 Q. All right.
20 A. Bajrushi had said that that was not the third person.
21 Q. Did Bajrush say that was not the third person or that he did not
22 think so or did not know?
23 A. I asked him could Halil Bicaj be the third person, and he said:
24 "No, I don't think so."
25 Q. Witness Number 2, with that correction in paragraph 23, does this
1 written statement accurately reflect your declaration?
2 A. Yes, it reflects it completely.
3 Q. And does this written statement accurately reflect what you would
4 say if you were examined or questioned orally today?
5 A. Yes.
6 MR. SAXON: Your Honour, at this time, I would seek to tender
7 this particular statement under Rule 92 ter along with the associated
8 exhibit, which now has the number P4.
9 JUDGE ORIE: It is admitted already into evidence, so tendering
10 is not necessarily anymore, but a number has to be assigned to it; and
11 then you said "with the associated exhibit," which is now P4. The
12 exhibit would be -- the statement is 65 ter 4?
13 MR. SAXON: This last statement is 65 ter --
14 JUDGE ORIE: Oh, you mean the --
15 MR. SAXON: P4, Your Honours, was the list of SMS messages.
16 JUDGE ORIE: Yes. That is correct. And that's the only
17 attachment you want to tender through this witness, or do we --
18 MR. SAXON: That was the only associated exhibit that we
20 JUDGE ORIE: Yes.
21 MR. SAXON: Yes, Your Honour.
22 JUDGE ORIE: Then, there are -- I don't have to ask about
24 Mr. Registrar, would you please assign a number to 65 ter
25 number P4.
1 THE REGISTRAR: Your Honours, 65 ter number 4 becomes Exhibit
2 Number P8, under seal.
3 JUDGE ORIE: P8 was admitted and is admitted under seal. Then
4 the attached exhibit is already admitted as P4, Exhibit Number P4.
5 Please proceed.
6 MR. SAXON: Your Honour, at this time, I have no further
7 questions for the witness.
8 JUDGE ORIE: Thank you.
9 Have you explained to Witness 2 the procedure; that is, that the
10 Chamber has read your statements and that you're here to answer questions
11 by the Defence on the statement.
12 Mr. Saxon, it's common in the Chambers I preside over that a very
13 brief summary will be read into the record so that the public also knows
14 what we are talking about. Perhaps you could do it at the beginning of
15 tomorrow's session.
16 MR. SAXON: Very well, Your Honour.
17 JUDGE ORIE: Yes.
18 Mr. Dieckmann, is it again you who will first cross-examine the
19 witness or is it Mr. Khan?
20 Witness 2, you'll now be cross-examined by Mr. Dieckmann, who is
21 counsel for Mr. Morina.
22 Cross-examination by Mr. Dieckmann:
23 Q. Good afternoon, Witness Number 2, my name is Jens Dieckmann,
24 Defence counsel for Bajrush Morina, and I will ask you a couple of
25 questions. I will try to ask my questions as short and clear as
1 possible, and I would highly appreciate if you could try to answer also
2 very briefly or clear if it's possible and proper for you. If you do not
3 understand the question, please indicate it immediately to me that I ask
4 you again. Did you understand me?
5 A. Yes, okay, fine.
6 Q. Thank you. Witness, in the following, I put it to you that,
7 first, Bajrush Morina did ask you during a telephone conversation on
8 2nd of July, 2007, when you were travelling to The Hague; secondly, I
9 will put it to you that the intention of Bajrush Morina to meet with you
10 was to get a confirmation from you that you stand behind the interview
11 you'd given him in 2002; and, thirdly, that he did not influence you any
12 way with regard to your testimony?
13 JUDGE ORIE: Mr. Saxon.
14 MR. SAXON: I'm sorry to interrupt, just a suggestion, that it
15 might be more fair for the witness and perhaps better for the record if
16 my learned colleague simply puts his questions one at a time, Your
18 JUDGE ORIE: Yes.
19 First of all, Mr. Dieckmann was not putting questions yet to the
20 witness. He was, from what I understand, he was fulfilling his
21 obligation under Rule -- and I think it would be Rule 90(H) which says:
22 "In the cross-examination of a witness who is able to give evidence
23 relevant to the case for the cross-examining party, counsel shall put to
24 that witness the nature of the case of the party for whom that counsel
25 appears which is in contradiction of the evidence given by the witness."
1 I think that's what Mr. Dieckmann did.
2 At the same time, I would agree with Mr. Saxon that if you do
3 that subject by subject, rather than the whole of your case, that might
4 be easier for the witness to follow.
5 Please proceed.
6 MR. DIECKMANN: Thank you, Your Honours.
7 Q. Witness, you know Bajrush Morina, don't you?
8 A. Yes, I know him.
9 Q. You met him personally first time in mid-July 2002?
10 A. No, that's not true -- yes, July 2002, that's right.
11 Q. At this time, you were in Pristina, Kosovo; true?
12 A. Yes.
13 Q. But you only spent a short time in Pristina because at that time
14 you lived in another country; true?
15 A. Yes.
16 Q. And you already knew Bajrush Morina before your first meeting as
17 a political journalist?
18 A. Yes. He worked for the newspaper Bota Sot as head -- as
20 Q. Thank you. In summer 2002, you contacted the Bota Sot office to
21 get in touch with Mr. Bajrush Morina, didn't you?
22 A. Yes. I was in the editorial office for an interview, and he met
23 me there.
24 Q. You finally met Bajrush Morina in his office as editor-in-chief
25 in the Bota Sot office in Pristina; true?
1 A. We met in one of the offices of the newspaper Bota Sot, yes,
2 that's true.
3 Q. And you met there in the morning time?
4 A. As far as I remember, it was around noon time. I don't think it
5 was in the morning, no.
6 Q. Thank you. The interview you have had with Bajrush Morina, was
7 it recorded, audio-recorded?
8 A. Yes. I think Bajrush did record it or he took notes in his
10 Q. This interview lasted about several hours, two, three hours,
11 could you remember?
12 A. Yes.
13 Q. To your recollection, what was the interview about? Could you
14 perhaps briefly summarize it, just briefly.
15 A. I'm not here to talk about that interview because it was
16 published in Bota Sot; but, initially, he asked questions and I answered
17 about events that had taken place during the war in Kosova.
18 MR. DIECKMANN: Perhaps, should we go in private session?
19 JUDGE ORIE: That might be a wise thing to do.
20 Mr. Registrar.
21 [Private session]
11 Pages 115-120 redacted. Private session.
12 [Open session]
13 THE REGISTRAR: Your Honours, we're back in open session.
14 JUDGE ORIE: Thank you, Mr. Registrar.
15 First of all, Witness 2, I'd like to instruct you that you should
16 not speak to anyone about the testimony, the testimony already given
17 today or the testimony still to be given tomorrow, because we'll continue
19 We adjourn and we'll resume tomorrow, Tuesday, the 9th of
20 September, at 9.00 in the morning in Courtroom II.
21 --- Whereupon the hearing adjourned at 1.48 p.m.
22 to be reconvened on Tuesday, the 9th day of
23 September, 2008, at 9.00 a.m.