Tribunal Criminal Tribunal for the Former Yugoslavia

Page 122

 1                           Tuesday, 9 September 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 9.05 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-04-84-R77.4, the

10     Prosecutor versus Astrit Haraqija and Bajrush Morina.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Witness 2, I would like to remind you that you are still bound by

13     the solemn declaration you gave yesterday at the beginning of your

14     testimony.

15             Mr. Dieckmann, are you ready to continue your cross-examination?

16             MR. DIECKMANN:  Thank you, Your Honours, yes.

17                           WITNESS:  WITNESS 2 [Resumed]

18                           [Witness answered through interpreter]

19                           Cross-examination by Mr. Dieckmann: [Continued]

20        Q.   Good morning, sir.

21        A.   Good morning.

22             MR. DIECKMANN:  First of all, I would like to inform the Chamber

23     that, with the excellent guidance of the Registry, we have been able to

24     produce a list of documents the Defence of Bajrush Morina intends to or

25     may use during cross-examination; and for easy identification of the

Page 123

 1     material, we would like to give every one of the parties one of the

 2     copies, and I would refer to the ID on the this paper when I use

 3     documents now.

 4             JUDGE ORIE:  Thank you.

 5             Mr. Dieckmann, may I also remind you that whenever there's any

 6     need to go into private session in order to make the pseudonym effective,

 7     that you immediately address me.

 8             MR. DIECKMANN:  Yes, Your Honour, I will.  Thank you very much.

 9        Q.   Witness 2, good morning again.  We finished yesterday talking

10     about an interview you have given to Bajrush Morina in the year of 2002.

11             MR. DIECKMANN:  I would like to show the witness again this

12     article; and, therefore, I would like to go into private session again.

13             JUDGE ORIE:  We turn into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 124

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

25             THE REGISTRAR:  Your Honours, we're back in open session.

Page 125

 1             JUDGE ORIE:  Thank you, Mr. Registrar.

 2             Please proceed.

 3             MR. DIECKMANN:

 4        Q.   Mr. Witness, are you aware that Bajrush Morina published several

 5     critical articles about the party of Haradinaj in Bota Sot?  Do you

 6     remember this?

 7        A.   I didn't have access to those writings; however, I know that he

 8     continuously described events and made efforts to objectively present the

 9     reality.

10        Q.   Thank you.  Mr. Witness, you know Mr. Bajrush Morina as a

11     friendly person, a person of good character?

12        A.   Yes, fully.

13        Q.   Thank you very much.  Now I would like to go to the first

14     interview you have given to the ICTY in August 2007.  In this

15     interview - the Prosecution has already asked these questions, but I

16     would like to repeat it again - in this interview, you had the

17     opportunity to provide all information and facts you were aware and you

18     knew at this time; correct?

19        A.   Yes.

20        Q.   And you signed this statement?

21        A.   Yes.

22        Q.   And you were aware that with this signature, you declared that

23     this statement are the truth?

24        A.   Yes.

25        Q.   Due to this statement, you have been contacted on or about the

Page 126

 1     1st of July, 2007, by telephone by a friend?

 2        A.   Yes.

 3             JUDGE ORIE:  Mr. Saxon.

 4             MR. SAXON:  Your Honour, I believe the witness -- the statements

 5     of the witness are in the first Prosecution binder.  They're also

 6     available in the Albanian language.  Perhaps the witness could have that

 7     made available to him in case he wants to refer to it.

 8             MR. DIECKMANN:  This would be excellent, yes.  Thank you.

 9             JUDGE ORIE:  Yes.

10             Could then the first binder -- oh, it's already with the witness.

11             MR. SAXON:  And this would be at tab 3 of the first binder.

12             MR. DIECKMANN:

13        Q.   So, Witness 2, you have it in front of you?

14        A.   Yes.

15        Q.   My last question was that I asked you that there have been a

16     telephone call by a friend on or about the 1st of July, 2007.  This --

17     the brother of this friend was working for the Bota Sot, wasn't he?

18        A.   Yes.

19        Q.   This friend who called you informed you that Bajrush Morina asked

20     for your mobile number; true?

21        A.   Yes.

22        Q.   And the friend asked you if you had any objection to giving it to

23     him; true?

24        A.   True.

25        Q.   And you replied that you did not have any objection to give the

Page 127

 1     telephone number to Bajrush Morina; true?

 2        A.   This is true.  I asked him what was that about.  He said:  "I

 3     don't know.  He just wants your number."  And I said to him, "You can

 4     give it to him."

 5        Q.   Thank you.  You remembered immediately who Bajrush Morina was

 6     when you received this call?

 7        A.   Yes.

 8        Q.   So you were interested, you were curious what he really wants?

 9        A.   Since he wanted my telephone number and wanted to speak with me,

10     I was positive and I wanted to know what was that all about.

11        Q.   You don't know if that friend told Bajrush Morina you were

12     travelling to The Hague, don't you?

13        A.   The friend didn't know anything at the time.

14        Q.   Thank you.  But it is true that during these days, you were

15     preparing for a trip to The Hague for a proofing session; true?

16        A.   True.

17        Q.   Bajrush Morina called you back on 2nd of July, 2007; true?

18        A.   Yes.

19        Q.   And he used the number you authorised in the call with your

20     mutual friend to use; true?

21             JUDGE ORIE:  Mr. Dieckmann, your question suggests calling back

22     that the witness called him first.  Can we clarify whether that's the

23     case or did you misspeak?

24             MR. DIECKMANN:  I'm sorry.  I've misspoken.

25             JUDGE ORIE:  Yes.  So the question was about, Witness, whether

Page 128

 1     Bajrush Morina called you on the 2nd of July, not in return to any call

 2     from your side.

 3             MR. DIECKMANN:  Thank you, Your Honours.

 4             THE WITNESS: [Interpretation] There was no call from my side; it

 5     was Bajrush who called me.

 6             JUDGE ORIE:  Please proceed.

 7             MR. DIECKMANN:  Excellent.  Thank you.

 8        Q.   Bajrush Morina explained to you that he could not talk on the

 9     phone more in detail, didn't he?

10        A.   Yes.

11        Q.   And he wanted to meet you the very next day?

12        A.   He said to me that Minister Haraqija wanted to have a coffee with

13     me the following day because he had something important to discuss with

14     me.  That's why he wanted a meeting.

15             JUDGE ORIE:  Mr. Dieckmann, in the beginning, I thought you would

16     need an introduction for a question which is the type of question we

17     would expect in cross-examination; however, until now, you go through the

18     statement which is in evidence.  So if you'd like to cross-examine the

19     witness, please refrain from repeating the whole of the statement.

20             Please proceed.

21             MR. DIECKMANN:  Thank you, Your Honours.

22        Q.   So your first reaction to this telephone -- to this telephone

23     call was not just to hang up or to interrupt the call.

24             My question is:  Your reaction to this telephone call was not to

25     hang up and stop the conversation when you heard what he was want from

Page 129

 1     you?

 2        A.   No.  My intention was not to hang up.  We did talk and I

 3     explained that it was impossible to meet the following day.

 4        Q.   So you did not immediately say that you did not wish to speak

 5     with anybody from Kosovo; you just said that you could not speak with him

 6     in the next day.  True?

 7             JUDGE ORIE:  Mr. Dieckmann, I invited you not to go through the

 8     statement.  Now you asked him whether he reacted by not having a

 9     conversation.  That's so obvious from the evidence we have now.  So if

10     there's any reason to challenge that, please do so; but what we hear is

11     just a repetition and some, I would say, some notorious facts.

12             Of course, if you have a telephone conversation - and that's the

13     evidence - then you have not refused to have the telephone conversation.

14     That is clear, isn't it?

15             MR. DIECKMANN:  Yes, Your Honours.  I would like to pose some

16     questions just to see how the witness react in confrontation with this

17     call.  Just --

18             JUDGE ORIE:  What he did is he entered into a conversation with

19     the person who called him.  That's in evidence, that's clear.  If you

20     want to establish that, there's no need to do that because that is in

21     evidence.

22             If there's any challenge to what the witness said, please come to

23     your point and focus on the issue you want to challenge.

24             Please proceed.

25             There's no need to emphasize matters in cross-examination.  The

Page 130

 1     evidence is as it is, and that is that the witness engaged in a

 2     conversation and did not stop, and that he did not say, "I never want to

 3     see you," but that he said "not tomorrow."

 4             Please proceed.

 5             MR. DIECKMANN:  Thank you very much.

 6        Q.   Witness, do you agree with me that in this ICTY statement from

 7     August 2007, you did not state that Bajrush Morina asked you during this

 8     telephone call the question, "When are you going to The Hague"; true?

 9             JUDGE ORIE:  Mr. Dieckmann, what is in the statement, the Chamber

10     can read it.  It's here.  All the members of this Chamber are

11     well-trained readers of statements.  So, unless there's any reason, any

12     ambiguity in it -- but please let's use our time in court in an efficient

13     way.

14             Please proceed.

15             MR. DIECKMANN:  Thank you, Your Honours.

16             Then I will leave this statement from August 2007, and I would

17     like to show the witness in private session, with your leave, the notice,

18     Defence Exhibit number 4.  This is notice of a police officer.

19             JUDGE ORIE:  We move into private session.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 131











11  Pages 131-140 redacted. Private session.















Page 141

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  Your Honours, we're back in open session.

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24                           Cross-examination by Mr. Khan:

25        Q.   Witness, my name is Karim Khan, and I am representing

Page 142

 1     Mr. Haraqija.  First of all, good morning.

 2        A.   Good morning.

 3        Q.   I have only four questions for you, so I'll be very short and

 4     then you can go home.  It's true to say that you have never met

 5     Mr. Haraqija; that's right, isn't it?

 6        A.   Yes, that's true.

 7        Q.   It's true to say that you've never spoken to Mr. Haraqija; that's

 8     right, isn't it?

 9        A.   I've never spoken to him ever.

10        Q.   He has never threatened you in any way; that's right, isn't it?

11        A.   Well, since I never spoke to him, I don't know how he could have

12     threatened me in any way; in other words, no, he didn't.

13        Q.   In fact, Witness, you'll be glad to see there's only three

14     questions.

15             MR. KHAN:  So I have no more questions at all, Your Honour.  I'm

16     grateful.

17        Q.   Thank you for coming.

18             JUDGE ORIE:  Thank you, Mr. Khan.

19             Mr. Saxon, the Bench has at this moment no questions.  Do you

20     have any need to put further questions to Witness 2?

21             MR. SAXON:  A few, Your Honour, yes.

22             JUDGE ORIE:  Yes, please proceed.

23             We are in open session, you're aware of that.

24             MR. SAXON:  Thank you, Your Honour.

25             JUDGE ORIE:  Please proceed.

Page 143

 1                           Re-examination by Mr. Saxon:

 2        Q.   Good morning, Witness 2.  My colleague Mr. Khan --

 3        A.   Good morning.

 4        Q.   You told my colleague Mr. Khan that you've actually never spoken

 5     with Mr. Haraqija.  Do you recall saying that a minute ago?

 6        A.   Yes, I just said that.

 7        Q.   But in July of last year, did you receive through Mr. Morina -- I

 8     will rephrase my question.

 9             When, if ever, have you received a message from Mr. Haraqija?

10             MR. KHAN:  Your Honour, it's a small point, but perhaps it can be

11     added "if ever."

12             MR. SAXON:  I believe that I added that in my question.

13             JUDGE ORIE:  If you look in the transcript, it says "when, if

14     ever ..."

15             MR. KHAN:  [Microphone not activated]

16             THE WITNESS: [Interpretation] I said clearly earlier that I never

17     contacted Mr. Haraqija and I was never contacted by him, but the messages

18     came through Bajrush.  Now, whether he conveyed the opinion and messages

19     of Mr. Haraqija, that is clear, but I didn't have direct contact with

20     him.

21             JUDGE ORIE:  Mr. Saxon, wasn't the matter not already perfectly

22     clear from the evidence in chief and the cross-examination, that although

23     Witness 2 never spoke to Mr. Haraqija, that he gave his statement about

24     messages and how he received them, et cetera.  Is there any need

25     to repeat, because Mr. Khan will ask again whether he ever spoke to him,

Page 144

 1     and then it is like ping-pong rather than --

 2             MR. SAXON:  Thank you, Your Honour.  I appreciate your point and

 3     I will move on.

 4             JUDGE ORIE:  Please proceed.

 5             MR. SAXON:

 6        Q.   Witness Number 2, you mentioned a few moments ago that after

 7     investigators of the Office of the Prosecutor spoke with Mr. Morina, you

 8     had a conversation with Mr. Morina and Mr. Morina expressed to you that

 9     he feared for his security.  My question, then, for you is:  Who was

10     Mr. Morina afraid of?

11        A.   I cannot state clearly of whom he was afraid.  His health was in

12     very bad condition.  He feared for his health.  This is how I understood

13     it, but I cannot state clearly of whom he was afraid.

14        Q.   And my last question or my last few questions concerns --

15             MR. SAXON:  Actually, Your Honour, I will ask to move into

16     private session very briefly, please.

17             JUDGE ORIE:  We move into private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 145

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  Your Honours, we're back in open session.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             MR. SAXON:

18        Q.   Witness 2, when Bajrush Morina tells you something, do you

19     believe in the truth of what he tells you?

20             MR. KHAN:  Your Honour, how does this arise out of

21     cross-examination?

22             MR. SAXON:  I can explain that, Your Honour.

23             JUDGE ORIE:  Yes.  It's a rather general question.  Mr. Saxon, if

24     I would ask you whether you believe me when I tell you something, what

25     would be your answer, it depends on circumstances and what I tell you,

Page 146

 1     isn't it?  It's kind of a question of such a general nature that I have

 2     difficulties in understanding how it could assist the Chamber.

 3             MR. SAXON:  Then, if it won't assist the Chamber, I will withdraw

 4     my question, Your Honour, and I have no further questions.

 5             JUDGE ORIE:  Thank you, Mr. Saxon.

 6                           [Trial Chamber confers]

 7             MR. KHAN:  Your Honour, perhaps all this kerfuffle at the back is

 8     to clarify a particular point.  It could be done by translation services

 9     at the end.  But with your leave, perhaps I can just seek to clarify it.

10     It arises out of page 22, line 8, of the transcript; and if I can read

11     what the translation says, this is the witness speaking:

12             "I said clearly earlier that I never contacted Mr. Haraqija and I

13     was never contacted by him, but the messages came through Bajrush.  Now,

14     whether he conveyed the opinion and messages of Mr. Haraqija, that is

15     clear; but I didn't have direct contact with him."

16             Your Honour, the clarification is whether or not the witness said

17     "that is clear," or whether, in fact, did he say "that is unclear."

18             JUDGE ORIE:  We could ask the witness.  Perhaps that is the

19     easiest way of resolving the matter.

20             MR. KHAN:  I'm grateful.

21                           Questioned by the Court:

22             JUDGE ORIE:  Witness 2, when you said now whether he conveyed the

23     opinion and messages of Mr. Haraqija, then you added a few words.  Could

24     you repeat those words to the extent you still remember.

25        A.   I cannot see that part of the transcript, but I will try to say

Page 147

 1     it again.  As I said earlier, I didn't have direct contact with Haraqija;

 2     however, if the messages came through Bajrush, it was Bajrush who

 3     conveyed those messages, when he was present at the meeting in the

 4     country where I reside, then it is very clear that he conveyed those

 5     messages through Bajrush but not directly to me through telephone or

 6     direct conversation.

 7             JUDGE ORIE:  This clarifies the matter, I take it, Mr. Khan.

 8                           [Trial Chamber confers]

 9             JUDGE ORIE:  Witness 2, this concludes your testimony in this

10     courtroom.  I would like to thank you very much for coming to The Hague

11     and for answering the questions that were put to you by the parties and

12     by the Bench.  I wish you a safe trip home again.

13             Could the witness be escorted out of the courtroom.  I think all

14     the curtains are down, so it would not in any way violate the protective

15     measures.

16             THE WITNESS: [Interpretation] I would like to thank the ICTY for

17     allowing me to participate in this session.  I hope that justice will

18     prevail and those who are not guilty will be released.  Thank you.

19                           [The witness withdrew]

20             JUDGE ORIE:  Mr. Saxon, is the Prosecution ready to call its next

21     witness?

22             MR. SAXON:  Yes, it is, Your Honour.

23             JUDGE ORIE:  And that would be Mr. Mitford-Burgess, is it?

24             MR. SAXON:  No, Your Honour, that would be Ms. Angjelina

25     Krasniqi.

Page 148

 1             JUDGE ORIE:  Yes.  I have, then, that Mr. Mitford-Burgess will

 2     come at a later --

 3             MR. SAXON:  That is correct, Your Honour.

 4             JUDGE ORIE:  After that, yes.

 5             MR. SAXON:  And, Your Honour, I'm also prepared to read the

 6     summaries of Witness 2's 92 ter statements into the record at a time that

 7     is convenient to the Chamber.

 8             JUDGE ORIE:  Yes.  Let's perhaps if the -- is Mr. Usher aware

 9     that he should bring the next witness?

10                           [Trial Chamber and registrar confer]

11             JUDGE ORIE:  Perhaps, then, to use our time as efficiently as

12     possible, you read the summary of Witness 17, awaiting the arrival of the

13     next witness.

14             MR. SAXON:  Thank you, Your Honours.

15             I would now like to read a brief summary of what is now

16     Exhibit P7, which is the ICTY witness statement of Witness 2 from the

17     14th of August, 2007.

18             In summary, Your Honour, on the 2nd of July, 2007, Mr. Morina

19     called Witness 2, and Mr. Morina told Witness 2:  "I cannot talk with you

20     on the phone.  The minister of culture, Astrit Haraqija, wants to come

21     and see you tomorrow."

22             Mr. Morina told Witness 2 that the matter was urgent and that he

23     wanted to talk with Witness 2 in the name of the Rugova family, knowing

24     that Witness 2 was a strong supporter and follower of the former

25     president, Ibrahim Rugova.  Witness 2 told Mr. Morina that he would meet

Page 149

 1     him on the 10th of July.  Mr. Morina agreed, and over the next several

 2     days sent Witness 2 text messages to confirm that he, Mr. Morina, and the

 3     Minister Haraqija would be coming on the 10th.

 4             Witness 2 informed the authorities in the country where he

 5     resides about the telephone call from Mr. Morina.  The authorities were

 6     concerned about Witness 2's security.  Eventually, it was agreed that the

 7     meeting would take place under strictly controlled conditions and that

 8     the conversation would be recorded.  Witness 2 met Mr. Morina on the

 9     10th of July and the 11th of July, 2007.  Both conversations were

10     recorded.

11             With your leave, Your Honours, I will now read a summary of

12     Exhibit P8, which is the ICTY statement of Witness 2 provided on the

13     20th of September, 2007.

14             This witness statement describes many of the same events

15     described in Witness 2's earlier statement, Exhibit P7, but Exhibit P8

16     provides greater detail.

17             In the second telephone call which Witness 2 received from

18     Mr. Morina, Mr. Morina asked the witness when the witness was going to

19     The Hague.  At that moment, it became clear to Witness 2 that Mr. Morina

20     and his associates knew that Witness 2 would be a witness in the

21     Haradinaj trial.  That upset Witness 2 very much and it also upset his

22     wife.

23             Witness 2 and Mr. Morina eventually agreed that Mr. Morina would

24     arrive in the witness's country of residence on 10 July.  Minister

25     Haraqija would arrive on 11 July and they would depart on 12 July.

Page 150

 1     Mr. Morina asked Witness Number 2 to reserve two hotel rooms of a good

 2     hotel, since the minister was of a certain rank and deserved a certain

 3     level of luxury.

 4             During the first meeting between Witness 2 and Morina on 10 July,

 5     Witness 2 understood that Mr. Morina had come to see the witness and pass

 6     on a message from Mr. Haraqija and a high-ranking official in UNMIK that

 7     there were three persons, including Witness 2, who could save Ramush

 8     Haradinaj by not testifying.

 9             Minister Haraqija had directed Mr. Morina to visit Witness 2 and

10     pass this message to him.  The goal of the message was to convince

11     Witness 2 to withdraw his evidence from the trial of Ramush Haradinaj.

12     Witness 2 told Mr. Morina that if he testified, he would not change his

13     evidence and he could not be bought.

14             Witness 2 met with Mr. Morina for a second time on 11 July.

15     Minister Haraqija had not arrived.  Mr. Morina had informed the minister

16     that Witness 2 would not reconsider his decision to testify; and,

17     therefore, Witness 2 assumed that the minister saw no point in speaking

18     with the witness.

19             MR. KHAN:  Your Honour, I'm grateful for that.

20             Perhaps I could have guidance, so that when it's my turn, do you

21     want whole statements to be read out, or are summaries sufficient, just

22     to guide my --

23             JUDGE ORIE:  Yes.  As a matter of fact, Mr. Saxon may not be so

24     familiar and so acquainted with the practice in the trials I'm presiding

25     over, that the summary could have been shorter.  I mean, I think the core

Page 151

 1     of the information could have been in 15 to 20 lines at most, but I

 2     didn't want to interrupt you.

 3             And short summaries, just sufficient for the public to understand

 4     what the testimony is about, rather than details as whether there were --

 5     for example, the two hotel rooms and the quality of the hotel rooms are

 6     details that are not necessary.

 7             Apart from that, of course, they were elicited in chief which the

 8     public could hear.

 9             Are you ready to call your next witness, Mr. Saxon?

10             MR. SAXON:  Yes, Your Honour.

11             JUDGE ORIE:  With the assistance of the usher, perhaps we could

12     already first have the witness be brought into the courtroom.

13                           [The witness entered court]

14             JUDGE ORIE:  Good morning, Ms. Krasniqi.

15             Before you give evidence in this court, the Rules require you to

16     make a solemn declaration that you will speak the truth, the whole truth,

17     and nothing but the truth.

18             The text is now handed out to you by the usher.  May I invite you

19     to make that solemn declaration.

20             THE WITNESS: [Interpretation] I solemnly declare that I will

21     speak the truth, the whole truth, and nothing but the truth.

22             JUDGE ORIE:  Thank you.  Please be seated.

23             You'll first be examined by Mr. Saxon, who is counsel for the

24     Prosecution.

25             You may proceed, Mr. Saxon.

Page 152

 1                           WITNESS:  ANGJELINA KRASNIQI

 2                           [Witness answered through interpreter]

 3                           Examination by Mr. Saxon:

 4        Q.   Good morning, Ms. Krasniqi.

 5        A.   [No interpretation]

 6        Q.   Ms. Krasniqi, you need to speak a little bit louder so that the

 7     interpreters can hear you in the microphone.  You might want to sit a

 8     little bit closer to the microphone.  You can move your chair closer if

 9     you like.

10             MR. SAXON:  Your Honour, before I proceed, this witness will be

11     providing evidence under Rule 92 ter.  Would the Chamber prefer that I

12     provide a short summary of each statement as we move along or should I

13     wait?

14             JUDGE ORIE:  For the public to understand the testimony, it is

15     preferred to have a short summary, not necessarily split up statement by

16     statement, but just in a couple of lines to explain what we find in the

17     92 ter statement.  Of course, a 92 ter statement which - let me just have

18     a look - would be on your exhibit list as --

19             MR. SAXON:  18, 19, and 20, Your Honour.

20             JUDGE ORIE:  -- 18, 19, and 20.  All are already admitted into

21     evidence.  I think the interviews are 18 and 19; 20 is in the exhibit

22     next to it.

23             MR. KHAN:  Your Honour, I'm in your hands, but the suggestion I

24     would make is, as a matter of good practice, what I would respectfully

25     submit is that summaries perhaps should be read before the witness enters

Page 153

 1     or after the witness leaves.  The reason for that is it seems to be a

 2     little unfair that the Prosecution perhaps can cherry-pick parts and

 3     summarize them.  You've got the full statements before Your Honours.  No

 4     objections at all for the summary, of course, but perhaps it could be

 5     done, if you're so minded, once the witness has left the courtroom after

 6     the cross-examination.

 7             JUDGE ORIE:  Yes.  But in order for the public to understand what

 8     the testimony is about, to tell them at the end what they should have

 9     learned at the beginning in order to appreciate what the witness is

10     telling is --

11             MR. KHAN:  It's true.  Your Honour's point is exceptionally

12     valid; but that's why my principal submission, and I should have raised

13     it earlier, is that summaries should be read in the absence of a witness

14     because it does -- whether the Prosecution are doing it or the Defence

15     are doing it, because otherwise it gives rise to the view that

16     cherry-picking can take place that may affect the results in

17     cross-examination.

18                           [Trial Chamber confers]

19             JUDGE ORIE:  Yes.  I expect, as a matter of fact, the party

20     summarizing the evidence to do that in a balanced way so that the public

21     is informed.  And if there's any complaint about that at any stage, I

22     would invite the parties to disclose to the other party the summary so

23     that comments could be made, Would you please include this, or leave that

24     out, or to be too much of detail.

25             MR. KHAN:  I'm grateful.

Page 154

 1             JUDGE ORIE:  Mr. Saxon, please read a short summary; and the

 2     summary, of course, is not evidence, Mr. Khan, that may be clear.

 3             MR. SAXON:  I will speak with a broad brush, Your Honour.

 4             Very briefly, this witness provided statements, two witness

 5     interviews, and a written witness statement to investigators of this

 6     office.  The first one on the 7th of November, 2007.

 7             And by the way, Your Honours, I misspoke before.  These are

 8     65 ter numbers 17, 18, and 19.

 9             The second interview was on the 27th of May, 2008; and on the

10     same day, an ICTY statement was provided.

11             And in very broad terms, the witness describes how travel

12     arrangements and authorisations are made or were made within the Ministry

13     of Culture, Youth, and Sport when the witness worked there.  The witness

14     also describes -- and that would have been 65 ter 18, Your Honour.

15             In 65 ter number 19, which is the ICTY witness statement of the

16     27th of May, the witness identifies two telephone numbers, one being hers

17     at the Ministry of Culture and the second telephone number is that of

18     Mr. Morina.

19             And 65 ter 17 is an interview given by the witness on the 27th of

20     May, 2008, in which the witness discusses a recorded intercept of a

21     telephone call between herself and Mr. Morina.

22             JUDGE ORIE:  Thank you, Mr. Saxon.

23             MR. SAXON:  [Microphone not activated]

24             If I could ask the assistance of the usher, please, if the

25     second -- actually, no, the first Prosecution binder could be provided to

Page 155

 1     the witness; and if we could turn, please, if the usher could assist the

 2     witness, if we could turn to what is tab 18, the Albanian version.

 3        Q.   Ms. Krasniqi, do you recall that two days ago, on Sunday, in my

 4     office here in the Tribunal in my presence and the presence of an

 5     interpreter and an investigator, you reviewed a statement that you -- an

 6     interview that you gave on the 7th of November, 2007?

 7             Do you recall that?

 8        A.   Yes.

 9        Q.   And if you could turn, please, to page 4 of that interview.

10             MR. SAXON:  And for those following along in English, this would

11     be page 3 in the English version.

12        Q.   Do you have page 4 in front of you?

13        A.   Yes.

14             JUDGE ORIE:  I take it, Mr. Saxon, that you want this not to be

15     shown to the public?

16             MR. SAXON:  Thank you very much, Your Honour.  That's correct.

17             JUDGE ORIE:  Please proceed.

18             MR. SAXON:

19        Q.   And if I can direct your attention, Ms. Krasniqi, to line 27 of

20     page 4, and this is line 26 of page 3.  And I'm going to read to you

21     several lines that go on to the next page, which would be page 5 in your

22     version and page 4 in the English version.

23             Starting at line 26 in the English version, the investigator

24     asks:  (redacted)

25   (redacted)

Page 156

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5             JUDGE ORIE:  We move into private session.

 6             MR. SAXON:

 7        Q.   The question was --

 8                           [Private session]

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 157











11  Pages 157-158 redacted. Private session.















Page 159

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we're back in open session.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             MR. SAXON:  This document is a written witness statement of

11     Ms. Krasniqi provided on the 27th of May, 2008.

12        Q.   Ms. Krasniqi, do you recall reviewing this statement in my office

13     on Sunday afternoon?

14        A.   Yes.

15        Q.   And does this statement accurately reflect your declaration?

16        A.   Yes.

17        Q.   And does this statement accurately reflect what you would say if

18     you were questioned or examined orally?

19        A.   Yes.

20             MR. SAXON:  At this time, I would ask that this statement be

21     given an exhibit number, Your Honour.

22             JUDGE ORIE:  Mr. Registrar.

23             THE REGISTRAR:  Your Honours, this becomes Exhibit P11, under

24     seal.

25             JUDGE ORIE:  The document was already admitted.  Now the

Page 160

 1     attestation Rule 92 ter has been given; therefore, P11 is finally

 2     admitted under seal.

 3             Mr. Saxon, I'm looking at the clock.

 4             MR. SAXON:  Yes, Your Honour, and I have no further questions

 5     for the witness.

 6             JUDGE ORIE:  You have no further questions.

 7             Ms. Krasniqi, you just arrived, but we'll have a break first.  We

 8     will resume at five minutes to 11.00.

 9                           --- Recess taken at 10.31 a.m.

10                           --- On resuming at 11.02 a.m.

11             JUDGE ORIE:  Who will be the first to cross-examine the witness?

12     Mr. Dieckmann.

13             Ms. Krasniqi, you'll now be cross-examined by Mr. Dieckmann,

14     who's counsel for Mr. Morina.

15                           Cross-examination by Mr. Dieckmann:

16        Q.   Good morning, Ms. Krasniqi.  My name is Jens Dieckmann.  I'm

17     Defence counsel for Mr. Bajrush Morina, and I have just a few number of

18     questions to you.  If you do not understand a question, just indicate and

19     I could repeat my question.  Do you understand this?

20        A.   Yes.

21        Q.   So, Madam, you have been deputy minister of culture in Kosovo;

22     it's true?

23        A.   Yes.

24        Q.   From which period of time, in which period of time, you have been

25     in this position?

Page 161

 1        A.   2004-2007.

 2        Q.   Thank you.  You're not a member of the LDK, aren't you?

 3        A.   No, I'm not.

 4        Q.   Could you explain to us which party you are belonging to at this

 5     time as a minister?

 6        A.   I was a representative of the Demo-Christian Albanian party in

 7     Kosovo.

 8        Q.   Thank you.  And Bajrush Morina worked for you as a political

 9     advisor; true?

10        A.   Yes.

11        Q.   But he's not a member of your party at this time?

12        A.   No, he's not.

13        Q.   He worked for you since spring-time 2005; is it true?

14        A.   Yes.

15        Q.   You know him already before he started working for you; true?

16        A.   Yes.

17        Q.   Could it be that you know him since 2003/2004 election campaign?

18        A.   Yes.

19        Q.   You know him as a political journalist for the Bota Sot; true?

20        A.   Yes.

21        Q.   Did you read frequently his articles in this newspaper during

22     this time when you have been minister and before?

23        A.   Yes.

24        Q.   Bajrush Morina has always been a supporter of the former

25     President Rugova and his party; isn't it true?

Page 162

 1        A.   Yes.

 2        Q.   Bajrush Morina was never a member or in public a supporter of

 3     Ramush Haradinaj and his party, true, as far as you know?

 4        A.   True.

 5        Q.   And as a journalist, he has frequently written critical articles

 6     also against Ramush Haradinaj and his party; true?

 7        A.   Yes.

 8        Q.   Ms. Krasniqi, you know the family of Bajrush Morina?

 9        A.   Yes.

10        Q.   He's married?

11        A.   Yes.

12        Q.   And he has -- he's the father of four children?

13        A.   Yes.

14        Q.   And you know that he is also take care for his old and sick

15     parents; true?

16        A.   Yes.

17        Q.   And as far as you know, he does not have any criminal record in

18     Kosovo?

19        A.   No, he hasn't.

20        Q.   You know Bajrush Morina as a friendly man, a person of good

21     character; is it true?

22        A.   Yes.

23             MR. DIECKMANN:  I don't have any further questions.  Thank you.

24             JUDGE ORIE:  Thank you, Mr. Dieckmann.

25             Mr. Khan.

Page 163

 1                           Cross-examination by Mr. Khan:

 2        Q.   Good morning, Ms. Krasniqi.  I have a few questions for you.

 3             MR. KHAN:  But perhaps first we can go into private session for

 4     two minutes.

 5             JUDGE ORIE:  We turn into private session.

 6                           [Private session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 164

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

20             THE REGISTRAR:  Your Honours, we're back in open session.

21             JUDGE ORIE:  Thank you, Mr. Registrar.

22             MR. KHAN:

23        Q.   And, Mrs. Krasniqi, you'll also be glad to know that, hopefully,

24     I won't take more than ten minutes or thereabouts.

25   (redacted)

Page 165

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6             MR. KHAN:  Let me start again.

 7        Q.   Astrit Haraqija never mentioned to you that he planned to travel

 8     to a third country; is that right?

 9        A.   That's correct.  He never mentioned that.

10        Q.   Astrit Haraqija never mentioned to you that he knew Bajrush

11     Morina was going to go to a third country; is that correct also?

12        A.   That's correct.  He never mentioned that either.

13        Q.   You never saw a travel request signed by Astrit Haraqija seeking

14     himself to go to that third country; is that also the truth?

15        A.   That's true.

16        Q.   I'm grateful.  And, similarly, it's true, is it not, that you

17     never saw any travel request or note signed by Astrit Haraqija

18     authorising Bajrush Morina to travel to that third country?  That's also

19     the truth, is it not?

20        A.   That's also truth.

21        Q.   Bajrush Morina told you that he had the permission of the

22     minister to travel to that third country; is that correct?

23        A.   Yes, correct.

24        Q.   But at no time did you verify that such permission had been given

25     from any other source; is that right?

Page 166

 1        A.   That's right.

 2        Q.   All travel approvals, all travel requests that are processed must

 3     eventually be signed by Mr. Mon Zhubi, the permanent secretary; is that

 4     right?

 5        A.   Yes.

 6        Q.   And no authorisation is valid until such signature is appended to

 7     a travel request; is that true?

 8        A.   Yes.

 9        Q.   I'm most grateful.  I have no further questions.

10             JUDGE ORIE:  Thank you.

11             Mr. Saxon, any need to re-examine the witness?

12             MR. SAXON:  Yes.  Thank you, Your Honour.

13             JUDGE ORIE:  Please proceed.

14                           Re-examination by Mr. Saxon:

15        Q.   Ms. Krasniqi, you explained that Mr. Morina is married, father of

16     four children, and that he takes care of his sick parents as well.  Back

17     in July of last year, approximately how much did Mr. Morina earn a month

18     as an advisor to you at the Ministry of Culture?

19        A.   I don't know the exact figure, perhaps something around 400

20     Euros.

21        Q.   My colleague asked you if Mr. Morina was always a supporter of

22     the late-President Rugova and his party, and you answered yes.  My

23     question for you is:  Even today, is President Rugova still revered in

24     general by his supporters in Kosovo?

25        A.   Yes, this is more than true.

Page 167

 1        Q.   In response to a question of my colleague Mr. Khan, you agreed

 2     that Mr. Morina had told you that before he travelled to the third

 3     country in July of last year, that Mr. Morina had the permission of the

 4     minister to travel.  Do you recall that?

 5        A.   Yes.

 6        Q.   When, if ever, did Mr. Morina tell you that he had been directed

 7     by the minister to travel to the third country?

 8             MR. KHAN:  Your Honour, can I just make sure that this is

 9     re-examination and, of course, it's not a licence for leading questions,

10     and a question is not rendered non-leading simply by the addition "if

11     ever."  So I would ask that my friend exercise care.

12             JUDGE ORIE:  Mr. Saxon, is there any basis at this moment already

13     in the evidence of the witness for leading the witness in this respect?

14     I invite you to explain where we find it; otherwise --

15             MR. SAXON:  If you will give me one moment, please.

16             JUDGE ORIE:  Yes.

17             MR. KHAN:  You see, Your Honour, my real principal and my

18     principal objection is that when a party seeks to rely on 92 ter, the

19     statements and the transcripts that have been properly attested and

20     approved stand as examination-in-chief.  It's not permissible for the

21     Prosecution to have its cake and eat it.  That is part of the testimony

22     that's before Your Honours.  If new matters arise out of

23     cross-examination, of course, clarification can be sought; but it's also

24     repeated on numerous occasions at page 2, page 8, page 13 of the 7th of

25     November statement that this witness is saying that permission was

Page 168

 1     granted.  But, Your Honour, I don't see that it's --

 2             JUDGE ORIE:  Mr. Khan, your objection was about leading in

 3     re-examination.

 4             MR. KHAN:  Indeed.

 5             JUDGE ORIE:  And it now looks as if you add to that that the

 6     matter did not arise from cross-examination.

 7             MR. KHAN:  Indeed, there's two matters, in fact.  It's leading

 8     which is the principal objection --

 9             JUDGE ORIE:  Well, the first one, I asked Mr. Saxon to find the

10     place where is the basis, so as to make the question a follow-up question

11     rather than a leading question.

12             MR. KHAN:  I'm grateful.

13             JUDGE ORIE:  Yes.

14             Mr. Saxon.

15             MR. SAXON:  The basis, Your Honour ...

16                           [Prosecution counsel confer]

17             MR. SAXON:  The basis, Your Honour, can be found in what is now

18     Exhibit P10, page 10 in the English version, lines 14 to 18.

19             JUDGE ORIE:  P10 is the statement --

20             MR. SAXON:  From 27 May 2008.

21             JUDGE ORIE:  -- of 27 May, yes.  We find that under tab 17, yes.

22             It's not very clear to me.  Could you please rephrase your

23     question, Mr. Saxon.

24             MR. SAXON:

25        Q.   You mention, Ms. Krasniqi, that the minister did not authorise

Page 169

 1     Mr. Morina -- did not authorise the travel of Mr. Morina to go to the

 2     third country.  Perhaps if I can put it more precisely, that -- that the

 3     minister, Mr. Haraqija, did not issue travel authorisation for Mr. Morina

 4     to go to a third country.

 5             However, can you tell us, please, whether, if in any way, to your

 6     knowledge, Mr. Haraqija was involved in Mr. Morina's trip to the third

 7     country?

 8        A.   Not in my presence, so I couldn't know.  I just know from talking

 9     with Bajrush that he was authorised by the minister, but not in my

10     personal presence.  I wasn't there as a witness to it, so I couldn't -- I

11     can't tell you.

12        Q.   Thank you.

13             MR. SAXON:  Then I have no further questions.

14             JUDGE ORIE:  Thank you.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  Judge Moloto has a question for you, Ms. Krasniqi.

17                           Questioned by the Court:

18             JUDGE MOLOTO:  Just one question.  When, if you do know, did

19     President Rugova die?

20        A.   I don't remember the exact date.

21             JUDGE MOLOTO:  Thank you very much.

22             JUDGE ORIE:  I would like to take you to part of what we find

23     under tab 11 of the binder.

24             Could the usher please assist the witness.

25             Not to be shown to the public.

Page 170

 1             Do you see the original and the handwriting at the bottom of this

 2     document?  Is that your handwriting?

 3        A.   Yes, it is.

 4             JUDGE ORIE:  Now, in your statement, you say that Mr. Morina

 5     would travel to see a friend and that it was explained to you that it was

 6     for private reasons.  Did anything come into your mind when you saw this

 7     document, where apparently a private visit to a friend is put in the

 8     context of travelling together with the minister, which at least could be

 9     considered to be something different from a private visit to a friend?

10             Did anything come into your mind when you saw this as far as the

11     reasons for the travel are concerned?

12        A.   No, not at all.

13             JUDGE ORIE:  Your testimony is that someone tells you that he'll

14     privately see a friend in a third country; and that, although against the

15     rules, permission is given for this travel to be funded, at least that's

16     what's told to you; and then you see this document wherein apparently the

17     minister accompanies the person on this private visit.

18             And this did not raise any further thoughts with you as to the

19     character of this visit?

20        A.   No.

21             JUDGE ORIE:  Thank you for that answer.

22                           [Trial Chamber confers]

23             JUDGE ORIE:  Has the -- have the questions put to the witness by

24     the Bench raised any further need to put questions to the witness?

25             MR. KHAN:  Your Honour, just for the record, in that case.

Page 171

 1                           Further cross-examination by Mr. Khan:

 2        Q.   Ms. Krasniqi, that document is not approved by the permanent

 3     secretary, is it?

 4             JUDGE ORIE:  I'm not asking whether it's this document on which

 5     we find handwriting of Mrs. Krasniqi; I'm asking when she saw that

 6     document whether that raised any thought.

 7             MR. KHAN:  No questions.  Yes, I'm grateful.

 8             JUDGE ORIE:  Mr. Dieckmann.

 9             MR. DIECKMANN:  No further questions for Mr. Bajrush Morina.

10             JUDGE ORIE:  Thank you.

11             Ms. Krasniqi, this then concludes your testimony in this court.

12     I would like to thank you for coming to the Hague and to testify; that

13     is, to answer both questions of the parties and the Bench.  I would like

14     to wish you a safe trip home again.

15             THE WITNESS: [Interpretation] Thank you very much, Your Honour.

16             JUDGE ORIE:  The witness is excused and may be escorted out of

17     the courtroom.

18                           [The witness withdrew]

19             JUDGE ORIE:  Mr. Saxon, is the Prosecution ready to call its next

20     witness?

21             MR. SAXON:  Yes, it is, Your Honour.  At this time, the

22     Prosecution would call Mr. Peter Mitford-Burgess.

23             JUDGE ORIE:  Yes.

24             Perhaps we could use the time that you read a short summary of

25     the witness so that the public is informed, and even the wish of Mr. Khan

Page 172

 1     it not to be read in the presence of the witness would be met.

 2             Please proceed.

 3             MR. SAXON:  Thank you, Your Honour.

 4             The statement of Mr. Peter Mitford-Burgess describes how he and

 5     another colleague in the Office of the Prosecutor obtained several items

 6     of evidence that are relevant to this case, both statements from

 7     witnesses as well as documentary evidence.  And in his statement,

 8     Mr. Peter Mitford-Burgess produces this material for the Trial Chamber.

 9             JUDGE ORIE:  Thank you, Mr. Saxon.

10             May the next witness be brought into the courtroom.

11                           [The witness entered court]

12             JUDGE ORIE:  Good morning, Mr. Mitford-Burgess.

13             Before you give evidence, the Rules require you to make a solemn

14     declaration.  The text is now handed out to you by the usher.  May I

15     invite you to make that solemn declaration.

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

17     whole truth, and nothing but the truth.

18             JUDGE ORIE:  Thank you, Mr. Mitford-Burgess.  Please be seated.

19             You'll first be examined by Mr. Saxon, who's counsel for the

20     Prosecution.

21             Please proceed, Mr. Saxon.

22                           WITNESS:  PETER MITFORD-BURGESS

23                           Examination by Mr. Saxon:

24        Q.   Good morning, Mr. Mitford-Burgess.

25             MR. SAXON:  Perhaps, again, with the usher's assistance, if the

Page 173

 1     first binder could be placed in front of Mr. Mitford-Burgess.

 2        Q.   And before we begin, Mr. Mitford-Burgess, I would simply ask you

 3     to remember to take care not to reveal any identifying details of the

 4     protected witness or the protected witness's residence.

 5             If you can turn, please, to what is tab 5 in that binder.

 6             MR. SAXON:  Your Honours, this is Prosecution 65 ter number 5.

 7        Q.   Mr. Mitford-Burgess, this is a declaration.

 8             MR. SAXON:  And if this could not be published to the public,

 9     please.

10        Q.   It's a declaration signed by you on the 16th of July, 2008.  Do

11     you recall that?

12        A.   Yes.

13        Q.   And my question for you is:  Will you attest that this written

14     statement accurately reflects your declaration?

15        A.   Yes, it does.

16        Q.   And will you attest that this written statement accurately

17     reflects what you would say if you were questioned or examined verbally

18     today?

19        A.   Yes, it does.

20             MR. SAXON:  At this time, Your Honour, I would ask that this

21     exhibit be given an exhibit number as well as the associated exhibits,

22     which, if you'd like, I can read the 65 ter numbers of those exhibits

23     into the record, if you would like.

24             JUDGE ORIE:  Yes, please do so.

25             MR. SAXON:  The exhibits associated with this -- with the

Page 174

 1     statement of Mr. Peter Mitford-Burgess are 65 ter numbers 1, 2, 7 through

 2     11, 13 through 16, 20 through 23, and 26 through 28.  Pursuant to the

 3     Trial Chamber's decision of 2 September 2008, these exhibits would be

 4     admitted pursuant -- along with the written statement of Mr. Peter

 5     Mitford-Burgess.

 6             Your ruling had been deferred on Exhibit -- 65 ter Exhibits

 7     1 through 2 and 29 through 30, but it's the Prosecution understanding

 8     that given the Trial Chamber's decision of last week not to exclude

 9     exhibits -- 65 ter Exhibits 1 and 2, then it would be appropriate to

10     admit them at this time.

11             JUDGE ORIE:  Could I hear from the Defence whether there are any

12     objections, objections which are not yet dealt with by motions to exclude

13     evidence, but for any other reason.

14             MR. KHAN:  Your Honour, no.  I'm most grateful.

15             JUDGE ORIE:  Mr. Dieckmann.

16             MR. DIECKMANN:  No objections for the Defence for Bajrush Morina.

17             JUDGE ORIE:  Thank you.

18             MR. SAXON:  Your Honour.

19             JUDGE ORIE:  Yes.

20             MR. SAXON:  Just so I don't create confusion --

21             JUDGE ORIE:  Yes, please do not.

22             MR. SAXON:  -- my colleague, Mr. Smith, has reminded me that

23     65 ter Exhibits number 29 and 30 were admitted yesterday.

24             JUDGE ORIE:  As numbers P2 and P3, isn't it?

25             MR. SAXON:  That is correct.

Page 175

 1             JUDGE ORIE:  Yes.  That's correct.  Then, when you referred to

 2     Exhibits 1 and 2, you included 1A, B, C, and 2A, B, C, isn't it?

 3             MR. SAXON:  Yes, Your Honour.

 4             JUDGE ORIE:  Then, Mr. Registrar, I don't know whether the 1A, B,

 5     C need separate exhibit numbers or whether they can be taken together;

 6     that is, transcript, audio-recording, and video-recording.

 7                           [Trial Chamber and registrar confer]

 8             JUDGE ORIE:  Then, for 65 ter 1A, B, C uploaded together,

 9     Mr. Registrar, that would be number?

10             THE REGISTRAR:  Your Honours, that becomes Exhibit Number P12,

11     under seal.

12             JUDGE ORIE:  P12 is admitted under seal.

13             2A, B, C would be?

14             THE REGISTRAR:  P13, Your Honours, also under seal.

15             JUDGE ORIE:  P13 is admitted into evidence under seal.

16             Now 65 ter number 7.

17                           [Trial Chamber and registrar confer]

18             JUDGE ORIE:  For all the associated exhibits, Mr. Registrar will

19     prepare a list assigning provisionally exhibit numbers, and then we'll

20     deal with them once we have that on paper.

21             I already draw the attention of you, Mr. Registrar, to the order

22     in which not 7 but 8 to 11, 13, and 15 are admitted under seal; and for

23     21, 22, and 23, it's also ordered that they would be admitted under seal.

24             We'll receive a list from Mr. Registrar and then we'll formally

25     decide on admission; but in the absence of any objections, the decision

Page 176

 1     to be expected is once numbers have been assigned, that they'll all be

 2     admitted.

 3             Please proceed, Mr. Saxon.

 4             MR. SAXON:  Your Honour, I seek the Chamber's guidance very

 5     briefly on a point of procedure.  There are two exhibits on the

 6     Prosecution's 65 ter exhibit list, which I could hypothetically tender

 7     through this witness.  One of them is Exhibit -- 65 ter Exhibit 31, which

 8     is a confidential list that was filed in the case of Prosecutor versus

 9     Haradinaj.  The second exhibit would be 65 ter Exhibit 32, which was

10     another filing in the case of Mr. Haradinaj.  It's a decision on the

11     Prosecution's application for protective measures.

12             However --

13             JUDGE ORIE:  Yes, please.

14             MR. SAXON:  -- my first suggestion was that perhaps the Chamber

15     could simply take judicial notice of these -- of these court documents.

16             MR. KHAN:  And, Your Honour, can I say as well, as a form of

17     concession, that, of course, the Witness 2 was a protected witness and

18     was subject to the relevant orders as contended by the Prosecution.

19             JUDGE ORIE:  Yes.

20             Mr. Dieckmann, do you take the same position?

21             MR. DIECKMANN:  Yes, I do.

22             JUDGE ORIE:  So, then, it appears to be an agreed fact that

23     Witness 2 was a witness in the Haradinaj case and that his protection,

24     including not to reveal his identity, was ordered by the Trial Chamber.

25     That is now an agreed fact.  Then I think that there's no need to further

Page 177

 1     tender through the bar table the documents appearing under numbers 31 and

 2     32.

 3             Please proceed.

 4             MR. SAXON:  May I have the Chamber's leave, then, for several

 5     minutes to tender -- to attempt to tender two more exhibits through

 6     Mr. Mitford-Burgess?

 7             JUDGE ORIE:  Please do so.

 8             MR. SAXON:  Thank you.

 9        Q.   First of all, Mr. Mitford-Burgess, if you could turn please to

10     tab 11 in that binder in front of you.  And, Mr. Mitford-Burgess, these

11     are a series of travel-related documents obtained from the Ministry of

12     Culture in Kosovo.  If you turn to what I believe is the 12th page in

13     your version which has --

14             MR. SAXON:  And if this please not be published to the public.

15        Q.   You'll see an ERN number 06244292 in the upper right-hand corner.

16     Are you with me?

17        A.   Yes.

18             MR. SAXON:  Your Honours, can we please move -- I'm sorry, is the

19     Chamber with me?

20             JUDGE ORIE:  Not yet as far as I'm concerned.

21             MR. SAXON:  I see Judge Moloto is now with me.  It should be

22     about the 12th page into this exhibit, Mr. President.

23             JUDGE ORIE:  I look to my left and I'm familiar with the document

24     anyhow, so I'll find it, yes.

25             MR. SAXON:  May we please move into private session, Your Honour.

Page 178

 1             JUDGE ORIE:  We move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 179











11  Pages 179-182 redacted. Private session.















Page 183

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  Your Honours, we're back in open session.

25             JUDGE ORIE:  Thank you, Mr. Registrar.

Page 184

 1             MR. DIECKMANN:

 2        Q.   Mr. Mitford-Burgess, did you receive the permission from the

 3     police from this third country to use this material in further

 4     investigations?

 5        A.   I don't think it was a case of the authorities there giving us

 6     explicit permission.  I believe that in the receipt of the material, it

 7     was envisaged that we would use it in any investigation we undertook.

 8        Q.   The use of this document, it was your own decision during this

 9     interview to use this?

10        A.   During the course of the interview, yes, it was.

11        Q.   So you didn't get any order to use it from superiors?

12        A.   No, sir.

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21             MR. DIECKMANN:

22        Q.   And the fact you have received information, could you briefly

23     illustrate what kind of information you received about the legal nature

24     of this material?

25        A.   We received information from a police officer from that country,

Page 185

 1     who was responsible for the obtaining of this material, and that it was

 2     obtained in accord with the laws of that country.

 3        Q.   So you have not been aware that, in fact, in this country, there

 4     is no parliament law to govern the production of this kind of

 5     recordings --

 6             MR. SAXON:  Your Honour.

 7             JUDGE ORIE:  Mr. Saxon, if we first allow Mr. Dieckmann to finish

 8     his question, and then I'd like to hear your objection.

 9             Was that the whole of your question, Mr. Dieckmann?

10             MR. DIECKMANN:

11        Q.   These kind of recordings in the conduct of police activities,

12     police investigations.

13             JUDGE ORIE:  Yes.

14             Mr. Saxon.

15             MR. SAXON:  My objection is that within the question of my

16     learned colleague is a legal conclusion that I don't believe has been

17     established yet, Your Honour.

18             JUDGE ORIE:  Yes.  Of course, Mr. Dieckmann is asking for an

19     awareness of the non-existence of a particular law, isn't it?

20             MR. SAXON:  That appears to be, yes, the question.

21             JUDGE ORIE:  Yes.  And that seems to be a factual question

22     whether a law exists or not, whether that law would apply.  Whether the

23     non-existence of such a law would have an impact on the legal or illegal

24     character of what was undertaken is, of course, a different matter and

25     requires legal expertise.  But awareness of the existence of a law

Page 186

 1     governing certain matter is a question of fact.

 2             MR. SAXON:  Thank you, Your Honour.

 3             JUDGE ORIE:  Please proceed.

 4             MR. DIECKMANN:

 5        Q.   Mr. Mitford-Burgess, during the conduct of this interview, you

 6     have been aware that Bajrush Morina was talking about an interview he

 7     made with the Witness 2 in 2002 before you confronted him with the

 8     material you received from the third country?  Could you remember this?

 9        A.   Yes, I believe so.

10        Q.   And --

11             JUDGE ORIE:  Mr. Dieckmann, I will not insist, but at least the

12     effect of the objection by Mr. Saxon is that your question has not been

13     answered.  If that is what you wish, fine; if that's not what you --

14     perhaps that's what Mr. Saxon wished to achieve.

15             MR. DIECKMANN:  I'm sorry.

16             JUDGE ORIE:  Awareness of the existence of a law was your

17     question, Mr. Saxon opposed, the objection was denied, and then you moved

18     on to a next question, which is fine with me --

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23        A.   I'm not familiar with the laws of this country.  All I can say

24     is and reiterate that I was told by a police officer from that country

25     that their activities were in accord with the law.

Page 187

 1        Q.   Thank you.

 2             JUDGE ORIE:  Mr. Dieckmann, would you be so cautious when

 3     referring to the country at page 64, line 17.

 4             MR. DIECKMANN:  Sorry, Your Honours.

 5        Q.   Mr. Mitford-Burgess, being informed that such an interview should

 6     have taken place, did you conduct any further investigations after this

 7     interview from the 26th of October, 2007, with regard to this interview?

 8        A.   No, sir.

 9        Q.   So, in fact, you completely ignored this interview in your

10     further investigations?

11        A.   No, sir.  I had no reason to dispute the fact that such an

12     interview had taken place between Mr. Morina and Witness 2.

13        Q.   Thank you very much.

14             MR. DIECKMANN:  I don't have any further questions.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  Mr. Dieckmann, could I invite you to read again page

17     65, line 1 and following, that question.  Apparently, the witness

18     understood your question; I did not.  But it may be that it has not been

19     transcribed accurately, I do not know; but could you perhaps rephrase the

20     question so that not only the witness but I also understand the question,

21     and then seek confirmation of the answer.

22             MR. DIECKMANN:

23        Q.   Sir, my question on page 65, line 1 and 2 should be:  Being

24     informed by Bajrush Morina that such an interview should have taken

25     place, did you start any kind of further investigations with relation to

Page 188

 1     this interview in your further investigation after the 26th of October,

 2     2007?

 3        A.   In respect of confirming whether or not such an interview took

 4     place between Mr. Morina and Witness 2 in 2002, I did not.  We accepted

 5     on face value from what he said that such an interview took place.

 6        Q.   So you --

 7             JUDGE ORIE:  Now I understand you.  You did not further

 8     investigate whether that interview took place or not?

 9             THE WITNESS: [Interpretation] No, sir.

10             JUDGE ORIE:  Thank you, Mr. Dieckmann.

11             MR. DIECKMANN:  Thank you.

12             JUDGE ORIE:  I may have been misled by the word "interview"

13     because "interview" have several meanings in this context, journalistic

14     and investigative.

15             Mr. Khan, do you have questions for the witness?

16             MR. KHAN:  With your leave, I do, Your Honours.

17             JUDGE ORIE:  Mr. Mitford-Burgess, Mr. Khan is counsel for

18     Mr. Haraqija and he'll now cross-examine you.

19             Please proceed.

20             MR. KHAN:  Your Honour, before I start the cross-examination,

21     with Your Honour's leave, perhaps I could go into -- we could go into

22     private session for two minutes.

23             JUDGE ORIE:  We turn into private session.

24                           [Private session]

25   (redacted)

Page 189











11  Page 189 redacted. Private session.















Page 190

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22             JUDGE ORIE:  Thank you, Mr. Registrar.

23             The ruling just given, of course, does not mean that to the

24     extent not necessary we could not respect the privacy of the person

25     involved.

Page 191

 1             MR. KHAN:  Your Honour, I'm being rather dense, I do apologise.

 2             JUDGE ORIE:  The ruling is clear that there are no limits, but my

 3     invitation is to not unnecessarily add to what might be not sought by

 4     Mr. Saxon.

 5             MR. KHAN:  I'm grateful.  I'll do my best, Your Honour.

 6                           Cross-examination by Mr. Khan:

 7        Q.   Mr. Mitford-Burgess, my name is Karim Khan and I'm counsel for

 8     Astrit Haraqija.  I have some questions for you.

 9             It's correct, isn't it, that you are a very experienced police

10     officer?

11        A.   Yes, sir.

12        Q.   And prior to coming to the Yugoslav Tribunal in 2000, you were a

13     police officer in your native New Zealand; is that correct?

14        A.   Yes, sir.

15        Q.   How many years have you been a police officer?

16        A.   Twenty-nine.

17        Q.   And you were the officer in charge, the investigative officer in

18     charge, in this contempt case; is that right?

19        A.   Yes, sir.

20        Q.   You had overall supervision for ensuring that proper

21     investigative practices were implemented to ensure the integrity of the

22     proceedings; is that right?

23        A.   Yes, sir.

24        Q.   And also knowing that there was a duty to obtain the best

25     evidence for Their Honours to make an informed decision; that's right,

Page 192

 1     isn't it?

 2        A.   Yes, sir.

 3        Q.   On the 19th of December, 2007, you interviewed Steven Schook; is

 4     that right?

 5        A.   Yes, it is.

 6        Q.   Mr. Schook held a high office in Kosovo; is that correct?

 7        A.   Yes.

 8        Q.   In fact, he was the second-most senior United Nations official;

 9     is that right?

10        A.   Yes.

11        Q.   He was appointed directly by the special representative --

12     appointed directly by the Secretary-General of the United Nations; that

13     is correct, is it not?

14        A.   Yes.

15        Q.   And you suspected that he was perhaps involved in contempt under

16     Rule 77 of the Rules of Procedure of this Tribunal; is that correct?

17        A.   Yes.

18        Q.   And the basis of that was the hearsay evidence of the second

19     accused in this case; is that correct?

20        A.   Yes.

21        Q.   And based upon that evidence, you required him to attend for

22     questioning, didn't you?

23        A.   Yes.

24             MR. KHAN:  Your Honours, perhaps I can show the officer an

25     interview and get him to verify that it's a true record of what

Page 193

 1     transpired.

 2             JUDGE ORIE:  Please do so, Mr. Khan.

 3             MR. KHAN:  Your Honours, with the assistance of the usher, there

 4     are copies for the Chamber.  It's in the Prosecution's -- no, it's not.

 5             And one for the witness, please.

 6        Q.   Witness, just glancing at that document is it correct to say that

 7     that is a true and full transcript of the interview that you yourself

 8     conducted with Steven Schook in December of last year?

 9        A.   Yes, sir.

10        Q.   You can look at page 5 if you wish, but it's correct, isn't it,

11     that the deputy SRSG stated, unequivocally, that he never had any

12     conversation with anybody in respect of any witness in the Haradinaj

13     case.  That's correct, is it not?

14        A.   Yes, sir.

15        Q.   You may wish to glance at page 10, but you will no doubt

16     recollect that he was emphatic when he said that he never instructed

17     anybody to seek an employee to speak with any protected witness relevant

18     to this case.  You can see that?

19        A.   Yes.

20        Q.   And that's what he said?

21        A.   Yes.

22        Q.   And by that, of course, you know that he was denying that he ever

23     told Astrit Haraqija to speak with the -- sorry.  Let me put that again.

24             By that, you know that he was denying that he ever told my

25     client, Mr. Haraqija, to tell Bajrush Morina to speak with the protected

Page 194

 1     witness in this case?  You know that was his answer, don't you?

 2        A.   Yes.

 3        Q.   He was emphatic that he had never told anybody at all that the

 4     protected witness in this case should not come and give evidence?

 5             He never tried -- he never conveyed a message to anybody that the

 6     protected witness in this case should be persuaded not to give evidence.

 7     That was his clear and unequivocal case, was it not?  That was his

 8     evidence?

 9        A.   Yes, sir.

10        Q.   Yes.

11             MR. KHAN:  Your Honour, I would seek to tender that transcript of

12     interview as a Defence exhibit.

13             JUDGE ORIE:  Yes.  Now, the --

14             MR. KHAN:  There's no objection --

15             JUDGE ORIE:  -- name of Mr. Schook is on the witness list as well

16     as a 92 bis witness.  Now, does it make sense -- I mean, now it's his

17     statement on paper without the attestations.  Would it not be a better

18     idea to have it admitted under Rule 92 bis --

19             MR. KHAN:  Well, Your Honour --

20             JUDGE ORIE:  -- and then, of course, what we do know is that at

21     least now Mr. Mitford-Burgess said that this is the statement.  Could the

22     parties agree that what has been shown to the witness at this moment is

23     exactly the same statement as the Defence tenders under 92 bis?

24             MR. KHAN:  Your Honour, that would have been, of course, most

25     logical had we complied or been able to comply with the requirements of

Page 195

 1     92 bis.  Unfortunately, we haven't been able to contact and find the

 2     address of the witness.  We sought it --

 3             JUDGE ORIE:  So you would say he's off the list --

 4             MR. KHAN:  He's off the list for now.

 5             JUDGE ORIE:  -- for 92 bis?

 6             MR. KHAN:  Indeed.

 7             JUDGE ORIE:  Then, of course, it makes sense.

 8             Mr. Saxon, any objection against the admission of the statement

 9     as an exhibit?

10             MR. SAXON:  Well, yes, Your Honour, because it was the

11     Trial Chamber's decision that the statement of Mr. Schook could be

12     admitted if it was certified under Rule 92 bis, and we have not received

13     such a certification.

14             JUDGE ORIE:  Yes.  Isn't it true that the Defence has sought to

15     introduce the statement through Rule 92 bis, that they have failed to

16     comply with the requirements under Rule 92 bis, and that now - and

17     that's, of course, the issue, Mr. Khan - that you now seek to introduce

18     this same statement through the witness, Mr. Mitford-Burgess?

19             MR. KHAN:  Well, Your Honour, I am rather surprised.  No doubt,

20     it was my confusion.  But my very clear recollection was that my learned

21     friend was not objecting to the interview of Steven Schook, but he was

22     objecting to the second interview that I recalled.  But, Your Honour, be

23     that as it may, there are a number of points I could make.

24             The witness who took this interview is available for

25     cross-examination; he's the man in the dock.  This document doesn't just

Page 196

 1     have external indicia of reliability.  It has intrinsic indicia of

 2     reliability because it's an interview, it was tape recorded; and, most

 3     importantly, it was not taken by the party using it, it was taken by the

 4     adversary party.

 5             So, in my submission, it's very clear that this by any standard

 6     must be admissible.  Perhaps one could step back for a moment and wonder

 7     under what basis does the Prosecution seek to exhibit the interviews of

 8     my client.  They're not taken under Rule 92 bis.  They're taken because

 9     there is a witness who conducted those interviews that presents them as

10     evidence in court.

11             In my submission, the same logic would pertain to the admission

12     in court now as an exhibit from the witness, from the investigator, who

13     conducted that interview.  For the life me, I don't see how those issues

14     can be logically separated.  There are intrinsic issues of reliability,

15     and, as I said, Your Honour, it's taken by the Prosecution, not by the

16     Defence.

17             There are no -- there are a number of different ways to seek

18     admission under the Rules of this Tribunal.  89(C) is there of course.

19     There are other modalities.  But this is not a statement, this is an

20     interview, which is verifiable, which was taken by the Prosecution, and

21     which was in their possession.  So, in my submission it's probative, it's

22     relevant, and it's clearly admissible.

23                           [Trial Chamber confers]

24             JUDGE ORIE:  The Chamber would not immediately decide on the

25     admission.  We'd like to further consideration the situation where

Page 197

 1     several rules seem to be in play.  The Chamber would like to take its

 2     time to consider whether this is admissible evidence, yes or no.

 3             Therefore, for the time being, Mr. Registrar, could you assign a

 4     number so that the statement is marked for identification.

 5             THE REGISTRAR:  Your Honours, this becomes Exhibit Number D1,

 6     marked for identification.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  Mr. Saxon, D1 is now marked for identification.  You

 9     briefly raised the matter of admissibility.  Mr. Khan said quite a lot

10     about it.  Mr. Dieckmann has not expressed himself yet on the matter.

11             MR. DIECKMANN:  Yes, Your Honours.  I would join the submissions

12     of my learned friend Mr. Khan.

13             JUDGE ORIE:  Thank you.

14             Now, Mr. Saxon, do you feel any need to offer further submissions

15     on the issues raised by Mr. Khan?

16             MR. SAXON:  Your Honour, I believe I've expressed myself clearly

17     that the wholesale admission of this statement would be contrary to the

18     order of this Chamber, and that is because Rule 92 bis prescribes

19     specific criteria for admission; and in this case, the gentleman is not

20     available for cross-examination.

21             JUDGE ORIE:  No.  At the same time, Mr. Khan has explained why

22     under the present circumstances, even by not applying Rule 92 bis, that

23     nevertheless this document, not under Rule 92 bis but as a document

24     introduced through this witness, should be admitted.  And I just wondered

25     whether you wanted to further respond to that.

Page 198

 1             MR. SAXON:  Your Honour, I would respond this way.  Suppose the

 2     situation were reversed and the Prosecution sought permission to tender

 3     the suspect interview of a witness with a great deal of inculpatory

 4     information against an accused and that witness was not appearing here in

 5     this court, the statement was not certified in any way under 92 bis, in

 6     my respectful submission, that request by the Prosecution would be

 7     summarily denied.  So I believe we're in a similar situation here, Your

 8     Honour.

 9             JUDGE ORIE:  Mr. Khan.

10             MR. KHAN:  Your Honour, I'm not going to belabour the point as --

11     or engage in ping-pong, as Your Honour put it quite properly.  But two

12     points that Your Honour had asked be carefully considered when deciding

13     this matter.  The Rules under Rule 42 and 43 were complied with.  The

14     Martic case makes it very clear that there's no absolute right to

15     cross-examination, and I'm not going to go into all the details about

16     that.

17             In relation to the last point, my learned friend hasn't addressed

18     how this is logically distinguishable from the Prosecution putting in

19     suspect interviews either.  But, Your Honour, I don't need to belabour

20     the point.  I'll be happy with what Your Honours decide.

21             JUDGE ORIE:  Yes, the Chamber will decide on the matter and we'll

22     give a ruling on it.

23             Please proceed.

24             MR. KHAN:  And, Your Honour, if you give me a moment just to try

25     and organize myself.

Page 199

 1             JUDGE ORIE:  Yes.

 2             Could we also ask you, Mr. Khan, how much time you would still

 3     need for planning purposes?  We are close to the moment where we usually

 4     have a second break.

 5             MR. KHAN:  Your Honour, I think it will be about five or ten

 6     minutes.  I'll try to be less.

 7             JUDGE ORIE:  If it would be five were ten minutes, this would be

 8     the last Prosecution witness, Mr. Saxon?

 9             MR. SAXON:  That's correct.

10             JUDGE ORIE:  And, then, perhaps it's good to see whether you can

11     finish in five to ten minutes and then have the break, and then after

12     that hear the case presentation by the Defence.

13             MR. KHAN:  Yes, Your Honour.  I'll try to be -- I'll try to move

14     on.

15        Q.   Officer, it's correct, is it not, that no charges were brought

16     against Steven Schook?  He hasn't been indicted by this court, has he?

17        A.   No, sir, he has not.

18        Q.   And you accept that the evidence that gave rise to the suspect

19     interview in relation to that gentleman was comprised of hearsay evidence

20     from the second accused in this case?

21        A.   Yes, sir, it was.

22        Q.   You conducted surveillance of his phone and there was no link of

23     any impropriety between him and my client; is that right?

24        A.   Yes, sir, that's correct.

25        Q.   You conducted searchs of UNMIK offices, looked at the computer,

Page 200

 1     and there was no evidence incriminating my client at all; is that right?

 2        A.   Yes, sir, that's correct.

 3             MR. KHAN:  Your Honour, I'll move on to another issue.

 4        Q.   On the 28th of October, 2007, it's correct, is it not, that you

 5     interviewed Mr. Veli Bytyqi?  Do you remember that?

 6        A.   Yes, yes, sir.

 7        Q.   You were present in that interview?

 8        A.   Yes, sir.

 9        Q.   And you spoke to him in relation to the investigation that you

10     were conducting; is that right?

11        A.   Yes, sir.

12        Q.   He states that he was present -- he told you that he was present

13     in Peja during the opening of a theatre.  Do you remember that?

14        A.   Yes.

15        Q.   You are of the view that my client incited the second accused in

16     this case during the opening of that theatre in Peja, that he incited him

17     to commit a contempt of this Tribunal; is that right?

18        A.   Our information was that there was a discussion at a cafe in Peja

19     which a number of people were present, including Mr. Morina and

20     Mr. Haraqija, when this subject of which you're talking about was

21     discussed.

22        Q.   Yes.  Let me just be rather plain in case there be any doubt.

23     You say that it was during that event in Peja that my client told the

24     second accused that he should interfere with a witness protected by this

25     Court.  That's the case, isn't it?

Page 201

 1        A.   That's our belief, sir, yes.

 2        Q.   Yes.

 3             JUDGE ORIE:  Mr. Khan, I have problems.  I'm not aware that

 4     Mr. Mitford-Burgess has any case to present here.  So whether it's the

 5     case in what he says or whether he reports on what he learned during

 6     interviews is a matter to be clearly distinguished.

 7             MR. KHAN:

 8        Q.   Witness, it's correct, is it not, that Veli Bytyqi says that he

 9     was present in Peja and there was no mention that he heard -- he didn't

10     hear any mention of any protected witness.  You remember him saying that,

11     don't you?

12        A.   He said a number of things.  Yes, I agree with you, he did say

13     that he didn't hear it, but he also said that it's possible that the

14     discussion could have taken place and he was not a party to it.

15        Q.   Yes, of course.  I'm not suggesting at all that Mr. Bytyqi is

16     omniscient and can hear everything; but it was very clear from what he

17     told you that he was sitting next to Mr. Haraqija during that event, he

18     was close to Mr. Haraqija, and he didn't hear any mention of any

19     protected witness.  Do you agree?

20        A.   He didn't exactly say where he was sitting.  He said he was with

21     the group and he didn't hear such a conversation.

22        Q.   And he didn't recall any mention of the ICTY or criminal

23     proceedings here; is that right?

24        A.   No.

25        Q.   Is that not right?

Page 202

 1        A.   Yes, it's correct.

 2        Q.   I am right?

 3        A.   Yes.

 4        Q.   Thank you.

 5             MR. KHAN:  Your Honour, perhaps the witness can be shown the

 6     interview of Veli Bytyqi.  This is the interview that I understood the

 7     Prosecution was objecting to.

 8             JUDGE ORIE:  Yes.

 9             Could we first -- we know what the -- apart from the witness

10     looking at it, could we first hear the objection which are, I take it,

11     not related in any way to what this witness could tell us about it.

12             Mr. Saxon, we do understand that you would have objections

13     against admission of Mr. Bytyqi's interview.

14             MR. SAXON:  Your Honour, yeah, I make the same objections, Your

15     Honour, because the Trial Chamber in its decision of 5 September 2008

16     said that it would admit this interview of Mr. Veli Bytyqi into evidence

17     if the witness would appear in court for cross-examination and any

18     questioning by the Judges, and that witnesses will attest that the

19     written statements or transcripts are accurate.

20             Now, that has not happened and it appears that that is not going

21     to happen with respect to this interview, this transcript of an

22     interview, with Mr. Veli Bytyqi, Your Honour.

23             JUDGE ORIE:  Mr. Khan, at least there is a difference, I would

24     say, with the previous matter, which is that the Chamber ruled that the

25     statement of Mr. Bytyqi would be admissible under the condition that he

Page 203

 1     would appear and be available for cross-examination.

 2             MR. KHAN:  Your Honour, that is the case.  Your Honour, the

 3     difficulty is that I had information from Kosovo - I can't give

 4     evidence - but he viewed himself as being a Prosecution witness.  And

 5     given the imminence of the trial, I couldn't get a letter from the

 6     Prosecution, I didn't even try to get a letter from the Prosecution,

 7     because by the time it came to my notice it was the weekend.

 8             But, Your Honours, the arguments in addition to the points raised

 9     earlier are that if one sees from the face of the document, this was

10     annex K to the Prosecution's papers that they submitted to His Honour

11     Judge Moloto to get the indictment confirmed.

12             It seems completely inequitable, in my respectful submission,

13     that the Prosecution, on the one hand, can use this evidence to haul my

14     client here to The Hague and yet object for the same evidence being put

15     forward by the Defence to exculpate their client.  It seems to be a

16     rather unfortunate position, and one, in my respectful submission, that

17     is rather bereft in principle.

18             JUDGE ORIE:  Mr. Saxon, the argument is, I would say, pretty

19     straightforward.  How could you rely on this evidence to get the

20     indictment confirmed and now object against admission?

21             MR. SAXON:  I certainly cannot deny, Your Honour, the fact that

22     the Prosecution has relied on this interview in the past, and I take my

23     learned colleague's point that there is an inconsistency in the

24     Prosecution's position.

25             JUDGE ORIE:  Any further submissions?

Page 204

 1             MR. KHAN:  Your Honour, no.  I'm grateful.

 2             JUDGE ORIE:  The Chamber will ...

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  The Chamber will consider the admission of this

 5     evidence together with the statement of Mr. Schook.  At the same time, in

 6     view of the exchange of arguments, the Chamber does not at this moment

 7     prevent you from asking questions about the statement which will be

 8     marked for identification.

 9             MR. KHAN:  Your Honour, I'm most grateful.

10             Before I forget, in relation to the first interview from the

11     UNMIK official that is going to be decided upon, I would just emphasize

12     that should you decide to grant the application to give it an exhibit

13     number, it should be under seal.

14             JUDGE ORIE:  Yes.  It's good that you remind us.

15             Mr. Registrar, the document that is I think D1, marked for

16     identification, should remain under seal.

17             Then perhaps it would be most practical to ask Mr. Registrar to

18     assign an MFI number to this document as well.

19             THE REGISTRAR:  Your Honours, this becomes Exhibit Number D2,

20     marked for identification.

21             JUDGE ORIE:  And also under seal, Mr. Registrar.

22             Then that's ...

23                           [Trial Chamber confers]

24             JUDGE ORIE:  Mr. Khan, I'm again looking at the clock.  If it

25     would take more than five to six minutes, we'll need to take the break

Page 205

 1     now.

 2             MR. KHAN:  Your Honour, I do apologise.  I think we ought to take

 3     the break.

 4             JUDGE ORIE:  We'll have the break and we will resume at 1.00.

 5                           --- Recess taken at 12.39 p.m.

 6                           --- On resuming at 1.02 p.m.

 7             JUDGE ORIE:  Mr. Khan, you earlier indicated that you would need

 8     five to ten minutes.  Would you please stay within those limits.

 9             Please proceed.

10             MR. KHAN:

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17             Mr. Khan, in this way, minutes are --

18             MR. KHAN:  Are lost.  Indeed.

19             JUDGE ORIE:  Please proceed.

20             MR. KHAN:

21        Q.   Why did it take you until August of 2007, Witness, to seek to get

22     authorisation from a Trial Chamber in the ICTY to commence investigations

23     in this case?

24        A.   I didn't come in --

25             MR. SAXON:  Your Honour.

Page 206

 1             JUDGE ORIE:  Mr. Saxon.

 2             MR. SAXON:  If my learned colleague is going to question the very

 3     legal foundation of the OTP's investigation in this case, which really

 4     means the very legal foundation of this entire matter, it seems to me

 5     that this would have been more appropriate for a separate motion, and I

 6     just don't know if that is the intent of my colleague.

 7             JUDGE ORIE:  Mr. Khan, would you please focus on facts in this

 8     respect.

 9             MR. KHAN:  Your Honour, it has come up already in

10     cross-examination, and I also notified my learned friend, back in July,

11     about my position.  Indeed, he was refusing to give me the date of the

12     Trial Chamber's order to commence investigations unless he asked -- and

13     he wanted to know the reason why.  Let me put it more neutrally.

14             And I was very candid with him that one of the reasons why I want

15     the date is the legality of what has transpired.  Now, this is the

16     officer who was in charge of the investigation.  I don't see it's a

17     completely improper question.  Your Honours, if you think it is, of

18     course, I'll move on.

19             MR. SAXON:  And once the Prosecution had my learned friend's

20     reasons, the date was given to my learned friend immediately, and my

21     learned friend would have had time to have addressed this matter if he

22     had so chosen.

23             JUDGE ORIE:  One second, please.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  Mr. Saxon, the objection is denied.

Page 207

 1             Mr. Khan, you may proceed.

 2             MR. KHAN:  Your Honour, I'm much obliged.

 3        Q.   So, Witness, could you answer, why did it take so long between

 4     your suspicions being aroused and seeking authorisation from the ICTY

 5     Trial Chamber?

 6        A.   I first became involved in this investigation on the 30th of

 7     August of 2007, when I received instructions.  What happened factually

 8     and legally prior to that, I was not a party to.

 9        Q.   Is it correct that my client's mobile telephone was monitored, it

10     was under surveillance, in October 2007?

11        A.   Yes.

12        Q.   Is it correct that from that surveillance, you obtained no

13     evidence that was supporting -- capable of supporting the allegations

14     that my client was involved in a contempt of this court?

15        A.   That's correct.

16        Q.   Do you know why an order for surveillance was not done -- was not

17     sought in August or September of 2007?

18        A.   No, I do not.

19        Q.   You executed a search warrant on the department of which my

20     client was the minister; is that right?

21        A.   Yes, sir.

22        Q.   You were given cooperation during that search; is that right?

23        A.   Yes, sir.

24        Q.   Did you check my client's computer?

25        A.   No, sir.

Page 208

 1        Q.   Did you check the fax machine for incoming and outgoing faxes?

 2        A.   No, sir.

 3        Q.   Did you speak and interview the permanent secretary in charge of

 4     that ministry?

 5        A.   No, sir.

 6        Q.   You are quite willing, it seems, to prefer an indictment against

 7     my client based on hearsay evidence; that's a fair assessment, isn't it,

 8     officer?

 9        A.   I presume that hearsay evidence is one of the ingredients of the

10     material that went to the Court seeking an indictment.

11        Q.   And you were happy to prefer that hearsay evidence as a basis to

12     convict an innocent man, a man of previous good character; isn't that

13     right?

14        A.   Well, happiness is not an issue here.

15        Q.   You felt professionally satisfied that you could in good faith

16     submit a case based on hearsay evidence, despite the fact you didn't

17     conduct a very thorough investigation.  Would you agree with that or

18     would you disagree with that?

19        A.   I agree and disagree.  By all means, we used hearsay evidence,

20     but I don't agree that it was an unthorough investigation.

21             MR. KHAN:  Your Honour, perhaps the witness can be shown tab 11.

22     It's the document under seal, with the manuscript writing on the bottom.

23             JUDGE ORIE:  Yes.

24             Mr. Mitford-Burgess, did you find it?  It is the first document

25     under tab 11, first binder, and the handwriting Mr. Khan was referring to

Page 209

 1     is found in the original.

 2             MR. KHAN:

 3        Q.   Officer, where did you obtain this document?

 4        A.   I understand this was provided to us by the Witness Krasniqi.

 5        Q.   Do you know where she got that document?

 6        A.   I presume it was part of the records in her office.

 7        Q.   Do you know whose writing is on the bottom of that document?

 8        A.   I believe it is hers.

 9        Q.   The same day a second -- a search warrant was executed at the

10     ministry offices in Pristina; is that right?

11        A.   Yes, sir.

12        Q.   Various documents were seized; is that right?

13        A.   Yes, sir.

14        Q.   This document was not amongst them, was it?

15        A.   No, sir.

16        Q.   Officer, you were told by the second accused in this case when

17     you interviewed him, that the reason he went to the third country was

18     because he wished to check the veracity of an article he had written back

19     in 2002.  Do you remember him saying that at the outset of the interview?

20        A.   Yes.

21        Q.   Have you ever read that article?

22        A.   No, sir.

23        Q.   In fact, it's fair to say that the Prosecution didn't even have

24     possession of that document until it was given by the Defence; isn't that

25     right?

Page 210

 1        A.   That's quite possible.

 2        Q.   You were quite content with your theory of the case, that this

 3     meeting was all about witness intimidation and the involvement of Astrit

 4     Haraqija, and you didn't even seek to explore other possibilities; isn't

 5     that right?

 6        A.   The witness said, initially, that he had gone to the third

 7     country to discuss the article that he had written in 2002.  Later in the

 8     interview, he conceded that that was not the case, that his real

 9     intention in going to the third country to see Witness 2 was a directive

10     from his supervisor.

11        Q.   Yes.  Officer, that, of course, was after you confronted the

12     second accused with the surveillance that was conducted in the third

13     country; isn't that right?

14        A.   Yes.

15        Q.   Is it a rare occurrence in your professional experience, in New

16     Zealand and in the Tribunal, for an accused who is -- for an individual

17     that is confronted with an inconsistent account to run back and seek

18     refuge in that previous different account?

19        A.   Are you meaning that, from the outset, he gave us one story and

20     then when we confronted him with the facts, he changed the story?

21        Q.   Well, the evidence, is it not, officer, is that he went back to

22     an account that was consistent in broad terms to what was recorded?

23     That's what happened, isn't it?

24        A.   I don't quite understand what you're getting at.

25        Q.   You didn't try and allow the second accused to develop his

Page 211

 1     account before you confronted him with the surveillance evidence, did

 2     you?

 3        A.   I still don't understand what you're getting at.

 4        Q.   Let me try it again.  It's my fault.  Please do bear with me.

 5             You did not explore in interview or at any time the second

 6     accused's statement in interview that the primary reason he went to the

 7     third country was to do with journalism?  Is that clear enough, officer?

 8        A.   Yes.  And, yes, we did explore with him the reason he went to the

 9     third country.

10        Q.   And is it a rare occurrence in your professional experience that

11     when an individual is confronted with a recording that is different from

12     the account that they give, that sometimes they seek refuge in the

13     previous recorded account, whether it's true or not?  It happens, doesn't

14     it?

15        A.   I can only speak on this occasion about the facts of this matter.

16        Q.   Well, officer, I'm asking you in your professional experience as

17     somebody well-versed and well experienced in investigating criminal

18     cases.

19        A.   My only answer is that the accused had the opportunity to give us

20     an account of his activities; after doing so, we confronted him with a

21     tape-recording of a conversation, after which he gave us another account

22     of his activities.

23        Q.   Officer, I'll move on.  I don't want to belabour the point.  I

24     think Their Honours have got the point that I was trying to make.

25             You knew that Mr. Morina was a journalist; is that correct?

Page 212

 1        A.   Yes.

 2        Q.   You knew that he was in strait and financial circumstances; is

 3     that correct?

 4        A.   No.

 5        Q.   You knew that he wrote an article about the third country; is

 6     that correct?

 7        A.   Yes.

 8        Q.   Did you think he did that out of the goodness of his heart, or

 9     did you think it was part of his professional activity as a journalist?

10        A.   I can only presume it was part of his professional activity as a

11     journalist.

12        Q.   Did you, at any time in your investigations in this case, explore

13     and investigate any other motive that the witness -- that the second

14     accused could have had to go to the third country?  You didn't, did you?

15             MR. SAXON:  Excuse me, Your Honour.

16             JUDGE ORIE:  Yes, Mr. Saxon.

17             MR. SAXON:  I'm very sorry to interrupt, if my learned friend

18     could simply clarify who he is referring to by the second accused.

19             JUDGE ORIE:  I take it that he's referring to Mr. Morina because

20     he would not refer to his own client as the second accused, and there are

21     only two.  That is how I understand your questions, Mr. Khan.

22             MR. KHAN:  Your Honour is spot on.

23             JUDGE ORIE:  Yes, please proceed.

24             MR. KHAN:

25        Q.   Officer, you didn't investigate any other possibility in this

Page 213

 1     case except that this was a contempt of court from start to finish.

 2     Isn't that right?

 3        A.   Yes.

 4        Q.   And the reason for that is you were having hellish problems in

 5     the Haradinaj case, weren't you?

 6        A.   I wasn't involved in the Haradinaj case.

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13             MR. KHAN:  I'm most grateful.

14        Q.   Are you aware that under Rule 77 of the Tribunal, the OTP is

15     required to get permission from a Trial Chamber before they can initiate

16     investigations into contempt?  Are you aware of that, sir?

17        A.   Yes.

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22             MR. KHAN:  That's the last time, Your Honour.  I'm tremendously

23     sorry.

24             JUDGE ORIE:  Yes.  That's what happens if you go beyond your five

25     to ten minutes.

Page 214

 1             MR. KHAN:  Your Honour, it's also what happens when I'm try to

 2     rush to finish in the five to ten minutes.

 3             JUDGE ORIE:  Please proceed.

 4             MR. KHAN:

 5        Q.   Officer, were you seeking to use the investigative agencies of

 6     the third state to conduct investigation by proxy?

 7        A.   No, sir.

 8             MR. KHAN:  Your Honour, I have no further questions.

 9             JUDGE ORIE:  Thank you, Mr. Khan.

10             Mr. Saxon, any need to re-examine the witness?

11             MR. SAXON:  Yes, please, Your Honour.

12             JUDGE ORIE:  Could you give us an indication how much time you

13     would need?

14             MR. SAXON:  I believe I can do it in 15 minutes, Your Honour.

15             JUDGE ORIE:  Please do it as quickly as could be reasonably

16     expected from you.

17             Please proceed.

18             MR. SAXON:  I will, Your Honour.

19                           Re-examination by Mr. Saxon:

20        Q.   Mr. Mitford-Burgess, a few minutes ago my learned colleague

21     Mr. Khan asked you about the interview that you carried out with

22     Mr. Morina back in October of last year, and you described how,

23     initially, Mr. Morina told you that he had gone to a third country - to

24     the third country in this case - to have a meeting related to an article

25     because he needed to discuss an article that he had published.

Page 215

 1             Do you recall that?

 2        A.   Yes.

 3        Q.   And then you explained that later, however, when Mr. Morina was

 4     confronted with some of the recording of one of those meetings,

 5     Mr. Morina explained that actually he had been directed by his supervisor

 6     to go to that third country for the meeting.  That was your evidence;

 7     correct?

 8        A.   Yes.

 9        Q.   And are you -- are you familiar with the contents of the recorded

10     meetings in the third country?

11        A.   Yes.

12        Q.   Now, can you tell us, please, is there -- to your knowledge, is

13     there anywhere in these -- any indication in these recordings of those

14     two meetings that Mr. Morina's purpose in going to that third country and

15     meeting with the protected witness was to discuss an article published

16     back in 2002?

17        A.   No, not that I'm aware of.

18        Q.   Okay.  My colleague -- if you could turn to tab 11.  I don't know

19     if you still have that in front of you.  And if you turn to the first

20     page of tab 11, and my colleague asked you some questions about this

21     document.  It's document from the Ministry of Culture dated the 6th of

22     July, 2007.  And my colleague referred you to --

23             MR. DIECKMANN:  Excuse me, Your Honour.

24             JUDGE ORIE:  Mr. Dieckmann.

25             MR. DIECKMANN:  Your Honours, I'm sorry.  I have to object

Page 216

 1     because I think this is -- the question was misleading regarding the

 2     content of the conversation on the 10th and 11th of July, 2007, because,

 3     in fact, in the revised transcripts, you find parts where my client was

 4     talking about the interview with the Witness Number 2 --

 5             JUDGE ORIE:  Mr. Dieckmann, reading the question, Mr. Saxon

 6     refers to tab 11, asked whether the witness still has it in front of him,

 7     directed him to the first page, and --

 8             MR. DIECKMANN:  Sorry, the question before.  I'm sorry.

 9             JUDGE ORIE:  The question before.

10             MR. DIECKMANN:  Yes, I'm sorry.

11             JUDGE ORIE:  Yes.  You're, of course, supposed to object when the

12     question has not been answered and not after the next question.

13             MR. DIECKMANN:  Sorry.

14             MR. SAXON:  Your Honour, I believe --

15             JUDGE ORIE:  Apart from that, whether any indication is found in

16     the recordings, of course, the Chamber can read as well.  So whether

17     there is any indication or if there would be any specific indication, we

18     would have expected you to raise the matter.

19             MR. DIECKMANN:  I refer --

20             JUDGE ORIE:  Yes.

21             MR. DIECKMANN:  -- you to page 92, line 17.

22             JUDGE ORIE:  Yes.

23             MR. DIECKMANN:  "Now can you tell us, please, is there -- to your

24     knowledge, is there anywhere any in these -- indication in these

25     recordings of those two meetings that Mr. Morina's purpose in going to

Page 217

 1     that third country and meeting with the protected witness was to discuss

 2     an article published in 2002?"

 3             JUDGE ORIE:  If you read, your speed of speech goes up.

 4             MR. DIECKMANN:  Sorry.

 5             JUDGE ORIE:  That was the question.

 6             MR. DIECKMANN:  Yes.  And due to my information from the --

 7             JUDGE ORIE:  Yes.  But the question was put to the witness.  The

 8     witness answered that question.  You can object against the way in

 9     which -- apparently you are criticising the witness's answer because you

10     say what is put to him and what he answered.

11             Let's move on, Mr. Dieckmann.  First of all, you're late; and

12     second, I don't think it's a valid objection you are raising.

13             MR. DIECKMANN:  Thank you.

14             JUDGE ORIE:  Mr. Saxon.

15             MR. SAXON:

16        Q.   If we can look at the first page again of what is 65 ter 11, this

17     travel document from the 6th of July, you had told my learned friend in

18     response to a question that this particular page was not amongst the

19     documents that were seized on the day -- the date of the search warrant.

20             Do you recall that?

21        A.   Yes, sir.

22        Q.   Can you explain why that was?

23        A.   No, I can't explain why that is the case.

24        Q.   In addition, my learned colleague asked you some questions about

25     the fact that Mr. Morina's telephone in Kosovo had been under

Page 218

 1     surveillance in October of 2007.

 2             Do you recall that?

 3             MR. KHAN:  Your Honour, I do correct, I was talking about my

 4     client's telephone.  Of course, both phones were monitored but it was my

 5     client's phone.  I'm representing the first accused.

 6             MR. SAXON:  Then I stand corrected.  I misunderstood.

 7             Then I have no further questions, Your Honour.

 8             JUDGE ORIE:  Thank you, Mr. Saxon.

 9                           [Trial Chamber confers]

10             JUDGE ORIE:  Judge Moloto has one or more questions for you.

11                           Questioned by the Court:

12             JUDGE MOLOTO:  Just for my own edification, sir, who did

13     Mr. Morina say his supervisor's name was when he told you that he had

14     been ordered by his supervisor to go to the third country?

15        A.   Mr. Haraqija.

16             JUDGE MOLOTO:  Thank you.  And what was the date of the search of

17     the Ministry of Culture offices?

18        A.   I can't recall offhand, Your Honour.  It was -- no, I can't

19     recall that.

20             JUDGE MOLOTO:  Was it before or after the authorship of the

21     letter -- of this document dated the 6th of July, 2007?

22        A.   It was after.

23             JUDGE MOLOTO:  Thank you.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  Since there are no further questions from the Bench,

Page 219

 1     may I take it that the questions of Judge Moloto have not triggered any

 2     need for further questions.

 3             Mr. Mitford-Burgess, thank you for appearing and thank you for

 4     answering the questions put to you by the parties and by the Bench.  I

 5     usually wish witnesses a safe trip home again.  I'm confident that you'll

 6     be able to make it safely home again.

 7             THE WITNESS:  I will.  Thank you.

 8                           [The witness withdrew]

 9             JUDGE ORIE:  Before we continue, I would like to give the reasons

10     for the decision as I announced yesterday.  The reasons for the denial of

11     Astrit Haraqija's and Bajrush Morina's joint request for certification

12     for appeal of Trial Chamber's decision on Bajrush Morina's request for a

13     declaration of inadmissibility and exclusion of evidence dated the 28th

14     of August, 2008, I refer to that as the motion for certification.

15             The reasons are the following:  On the 4th of September, 2008,

16     the joint Defence submitted the motion for certification, requesting

17     leave to appeal the Trial Chamber's decision on Bajrush Morina's request

18     for a declaration of inadmissibility and exclusion of evidence, the

19     impugned decision.

20             In support, the Defence argues that:  A, the Trial Chamber erred

21     in failing to realize or failing to properly consider that the correct

22     translation of the suspect interview with the accused Morina is an area

23     of clear dispute between the parties; B, the Trial Chamber erred in

24     concluding that the corrected, more prejudicial version was the correct

25     version without its own independent verification thereof by appointing an

Page 220

 1     independent translator to listen to the audio recording of the suspect

 2     interview and review written transcript for accuracy; C, the

 3     Trial Chamber applied an incorrect standard in respect of the required

 4     voluntariness of the waiver of the right to the assistance of counsel.

 5             According to the Defence, these issues would significantly affect

 6     the outcome of the trial as well as the fair conduct of the proceedings.

 7     It argues that the Trial Chamber's errors clearly constitute a ground of

 8     appeal post-judgement which can possibly be avoided if the issue is

 9     resolved now.

10             Finally, the Defence also points out that since the trial is due

11     to be held only during this week, an immediate resolution by the Appeals

12     Chamber may materially advance the proceedings.

13             On September the 5th, 2008, the Prosecution filed its response

14     opposing the motion for certification.  The Prosecution submits that the

15     Defence never disputed the accuracy of the revised translation prior to

16     the issuance of the impugned decision, nor that it had sought

17     verification of the translation by an independent interpreter.

18             Moreover, the Prosecution argues that the Defence has not

19     explained how the Trial Chamber misapplied the law applying "an incorrect

20     standard."

21             The Prosecution concludes that the Defence has not demonstrated

22     that the fairness and expeditiousness of these proceedings would be

23     served by certifying this appeal, which is the first prong of the

24     requirements under Rule 73(B).

25             The Chamber notes that a proper request for certification is "not

Page 221

 1     concerned with whether a decision was correctly reasoned or not.  That is

 2     a matter for appeal, be it an interlocutory appeal or one after final

 3     judgement has been rendered.  Rule 73(B) concerns the fulfilment of two

 4     criteria, after which the Trial Chamber may decide to certify an

 5     interlocutory appeal."

 6             Accordingly, according to Rule 73(B) of the Rules of Procedure

 7     and Evidence, "decisions on all motions are without interlocutory appeal,

 8     save with certification by the Trial Chamber which may grant such

 9     certification if the decision involves an issue that would significantly

10     affect the fair and expeditious conduct of the proceedings or the outcome

11     of the trial and for which, in the opinion of the Trial Chamber, an

12     immediate resolution by the Appeals Chamber may materially advance the

13     proceedings."

14             The fair and expeditious conduct of the proceedings or the

15     outcome of the trial.

16             The Chamber concurs with the Prosecution that a thorough reading

17     of the Defence submissions made prior to the impugned decision reveals

18     that the Defence did not submit that it took issue with the accuracy of

19     the Prosecution's revised translation, in particular as regards the

20     expression "maybe later," nor has the Defence on a prior occasion

21     requested that the revised translation be verified by an independent

22     interpreter.

23             Footnote 2 of the Defence submission of the 4th of August, 2008,

24     reads:  "The Defence has as of yet been unable to verify whether this

25     corrected version is, indeed, an accurate transcription and translation

Page 222

 1     of the audio of the interview.  If the translation is in dispute, it may

 2     need to be submitted to an independent interpreter for verification.

 3     Nonetheless, even assuming that the language in the latest English

 4     transcript is correct, the Defence submits that the ambiguity of the

 5     language of Mr. Morina's purported waiver remains unchanged."  This is

 6     the end of the reading of footnote 2.

 7             Moreover, the Chamber finds that the Defence has not sufficiently

 8     substantiated its claim that the Chamber applied an incorrect standard in

 9     its impugned decision.  Therefore, the Chamber is not satisfied that the

10     Defence has demonstrated that the impugned decision suffers from such a

11     flaw in its factual or legal reasoning that the fair and expeditious

12     conduct of the proceedings or the outcome of the trial has been called

13     into question.

14             I now move to materially advance the proceedings.

15             Having found that the first of the two requirements under

16     Rule 73(B) has not been met and considering that an application for

17     certification must satisfy both requirements cumulatively, there would be

18     no need for the Chamber to address the issue of whether immediate

19     resolution by the Appeals Chamber would materially advance the

20     proceedings.

21             Nevertheless, the Chamber finds that the Defence has also failed

22     to satisfy this requirement.  The certification motion was filed two

23     working days prior to commencement of the case and about one week before

24     its conclusion.  It is, therefore, difficult to conceive how resolution

25     by the Appeals Chamber could materially advance the proceedings.  On the

Page 223

 1     contrary, in the Chamber's view allowing an interlocutory appeal at this

 2     time would cause an unnecessary delay in concluding the proceedings in

 3     the present case.

 4             This concludes the reasons for the denial of the certification

 5     sought.

 6             We have five minutes left.  I think it would not be very wise to

 7     invite the Defence to start --

 8             MR. KHAN:  Your Honour --

 9             JUDGE ORIE:  Yes.

10             MR. KHAN:  -- perhaps the Prosecution want to be invited to close

11     their case.

12             JUDGE ORIE:  Yes.  That's how I understood the present situation.

13             Mr. Saxon, have I understood it well or is there any --

14             MR. SAXON:  If you'll just give me five seconds to review my

15     trial plan.  Yes, Your Honours, that is the Prosecution's case.

16             JUDGE ORIE:  Yes.  And I take it that we have not forgotten any

17     of the exhibits on the list?  I have not checked it.  I leave it up to

18     you.

19             MR. SAXON:  The Prosecution is not -- does not plan to tender any

20     additional --

21             JUDGE ORIE:  -- any further exhibits.

22             MR. SAXON:  -- exhibits.

23             JUDGE ORIE:  Yes.

24             MR. KHAN:  Your Honours, for the sake of formality, I will say --

25             JUDGE ORIE:  Yes.

Page 224

 1             MR. KHAN:  -- and I speak on behalf of my learned friend as well,

 2     there's no Rule 98 bis application at this stage.

 3             JUDGE ORIE:  Apart from whether that would apply in the present

 4     case, you know that sometimes the proceedings are a bit adapted, and I

 5     would like to discuss this with the parties as well.  For example, final

 6     briefs are usually not presented in contempt cases.  Unless I hear from

 7     any of the parties that there is a wish to do so, and then have oral

 8     submissions, the final submissions after that, the Chamber would like to

 9     proceed.

10             MR. KHAN:  Your Honour, I think the starting point, I'll just say

11     it for the record, my view is that under Rule 77, parts 4 to 9 of the

12     Rule do apply mutatis mutandis; but, of course, there is adaptability

13     within your overall discretion.

14             As far as the closing briefs are concerned, I think the matters

15     are well -- have been well put before Your Honours.  And if my learned

16     friend agrees, I think closing speeches will be sufficient in this case

17     to expedite matters, and I don't think there will be any loss of clarity,

18     I hope.

19             JUDGE ORIE:  Mr. Saxon.

20             MR. SAXON:  In the great spirit of cooperation between the

21     parties, Your Honour, the Prosecution agrees.

22             JUDGE ORIE:  Mr. Dieckmann, may I --

23             MR. DIECKMANN:  I can only join the other submissions.  Thank

24     you.

25             JUDGE ORIE:  Of course, the Rules fully apply, Mr. Khan, I'm

Page 225

 1     fully aware of that.  At the same time, for example, there was no

 2     Pre-Trial Conference in this case, which is often not done because

 3     contempt cases, of course, are a bit of a different character; although,

 4     of course, the fundamental matters are the same as always.

 5             Then I would like to proceed.  The Prosecution's case closed, no

 6     98 bis applications.

 7             If I look at your witness list, Mr. Khan, I have two viva voce

 8     witnesses, one scheduled for 90 minutes, another for 60 minutes.

 9             MR. KHAN:  Your Honour, at this stage - and I will speak to the

10     witnesses beforehand - but I am inclined now that the Prosecution has

11     closed to call three witnesses:  The accused himself --

12             JUDGE ORIE:  Yes.

13             MR. KHAN:  -- I think, at the moment, that's the way we're going.

14     It may change tomorrow, but I think that's the way things are going; the

15     second witness will be Eddie --

16             What's the surname?

17             JUDGE ORIE:  Kuqi.

18             MR. KHAN:  -- Eddie Kuqi; and the third is Mr. Kasapolli.

19             These are the witness I would call, and then close the case.

20             JUDGE ORIE:  That means that Mr. Zhubi is not on the list

21     anymore?

22             MR. KHAN:  No.  And, of course, there is the 92 bis witness

23     statement --

24             JUDGE ORIE:  Of Zija Isa Rugova, according to my list.

25             MR. KHAN:  Indeed.  And also of the wife of the client which is

Page 226

 1     going to be redacted, in accordance with Your Honour's order, some time

 2     back.

 3             JUDGE ORIE:  Yes.  That's paragraph 3 and 4 that I am thinking

 4     about.

 5             MR. KHAN:  Indeed.

 6             Your Honour, the other matter, I hope you don't mind me raising

 7     it, Your Honours are, of course, seized of an application for

 8     reconsideration.  And the only thing I would say in relation to that is

 9     there's no objection at all, and it's a matter you don't need any

10     permission for anyway, if Your Honours wish to listen to that part of the

11     recording.

12             And I can say for the record I'm completely satisfied in

13     accepting whatever Your Honours wish, because the words "maybe, maybe"

14     are in English, and I'm completely happy to accept as definitive Your

15     Honours' own determination as to what he said in relation to that

16     application.

17             JUDGE ORIE:  Mr. Dieckmann, would the same be true as far as you

18     are concerned?

19             MR. DIECKMANN:  Yes, I join the submissions of my colleague.

20             JUDGE ORIE:  So that means that the Chamber can form its opinion

21     on that portion --

22             MR. KHAN:  Indeed.

23             JUDGE ORIE:  -- of the conversation which is in English, and

24     then, of course, make its own evaluation on the basis of the whole of it.

25             MR. KHAN:  Indeed.  And Your Honours' determination will be

Page 227

 1     definitive on that issue.

 2             JUDGE ORIE:  Yes.  Let's then be very practical.  Could you give

 3     us an estimate on how much time it would take if the accused takes the

 4     stand?

 5             MR. KHAN:  Your Honour, I don't intend to be more than 40 minutes

 6     with him.  I'm going to be a little bit more generous with myself, so I

 7     don't fall into the mire that I fell into before.  I'll say maximum 40

 8     minutes for examination-in-chief.  I'll try to be as brief as I can.

 9             Mr. Kuqi, Eddie Kuqi, he's a 92 ter witness, so very brief; but,

10     basically, he'll be tendered for cross-examination, and, again, a

11     discrete issue.

12             JUDGE ORIE:  So the 45 minutes which we find on your list could

13     be reduced to ten minutes?

14             MR. KHAN:  Yes.

15             JUDGE ORIE:  So that makes close to one hour for chief, and then

16     we still have Mr. Kasapolli.

17             MR. KHAN:  Your Honour, I do hope I don't misspeak, but my

18     intention would be all the witnesses in chief would be no more than an

19     hour and a half.

20             JUDGE ORIE:  Yes.

21             Then Mr. Dieckmann.

22             MR. DIECKMANN:  Your Honours, up to now, the Defence of Bajrush

23     Morina still does not intend to call any witness, and we indicated that

24     we would very briefly be posing questions in cross-examination.

25             JUDGE ORIE:  Yes.

Page 228

 1             Mr. Saxon.

 2             MR. SAXON:  Just one question, Your Honour.  Given the expected

 3     speed which these proceedings may travel tomorrow, could the Chamber

 4     inform the parties whether we will be expected tomorrow to provide

 5     closing arguments.

 6             JUDGE ORIE:  Yes, of course, I'm looking at that.  If I'm

 7     optimistic - and I am by nature an optimistic person - then I think the

 8     three witnesses could be dealt with in two sessions.  Globally, one and a

 9     half hours for you, Mr. Khan; further questions, cross-examination, most

10     likely not more than one and a half, which would lead us to the

11     conclusion of the presentation of evidence by the second break.

12             Next question, of course, closing arguments, I think matters are

13     relatively clear where the issues are.

14             How much time would you need, Mr. Saxon?

15             MR. SAXON:  Maximum one hour, Your Honour.

16             JUDGE ORIE:  Mr. Khan.

17             MR. KHAN:  Your Honour, I will also ask for no more than an hour.

18             JUDGE ORIE:  Mr. Dieckmann.

19             MR. DIECKMANN:  Same as me.

20             JUDGE ORIE:  Yes.  That means that we could not conclude.  Let me

21     just see.

22                           [Trial Chamber confers]

23             JUDGE ORIE:  The Chamber urges the parties to see whether they

24     can make their closing arguments in half an hour.  That's for you,

25     Mr. Saxon; that's for you, Mr. Khan; and for you, Mr. Dieckmann.  Please

Page 229

 1     consider this very seriously.

 2             The Chamber gains the impression that most of the issues in this

 3     case are both on the basis of the pre-trial briefs; and in view of what

 4     we've heard until now - of course, we will still hear evidence from the

 5     Defence - that the issues are relatively clear and that it is also a

 6     matter of efficiency and proceeding in such a way that we do not lose any

 7     time unnecessarily.

 8             Yes, Mr. Saxon.

 9             MR. SAXON:  I'm sorry.  Just to clarify, Your Honour, but will

10     the parties be expected to present their closing arguments tomorrow then?

11             JUDGE ORIE:  Yes, at least to start.  We'll proceed as quickly as

12     possible; and from the invitation to reduce it to half an hour, you may

13     understand that if we could conclude this trial by tomorrow, the Chamber

14     would prefer to do that.

15             We stand adjourned and we resume tomorrow, Wednesday, the 10th of

16     September, 9.00 in the morning, Courtroom II.

17                           --- Whereupon the hearing adjourned at 1.51 p.m.

18                           to be reconvened on Wednesday, the 10th day of

19                           September, 2008, at 9.00 a.m.