Tribunal Criminal Tribunal for the Former Yugoslavia

Page 778

1 Friday, 9 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

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

6 JUDGE ORIE: Good afternoon to everyone.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 Witness 38, I'd like to remind you that you are still bound by the

12 solemn declaration you've given at the beginning of your testimony

13 yesterday. And I'll now give an opportunity to Mr. Emmerson to continue

14 his cross-examination.

15 Are you ready, Mr. Emmerson, to continue?

16 MR. EMMERSON: Your Honour, yes.

17 WITNESS: WITNESS SST7/38 [Resumed]

18 [Witness answered through interpreter]

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

20 Q. Witness 38, yesterday afternoon I was asked to clarify two issues

21 with you. The first concerns previous statement you made, and the second

22 concerns the precise date of the incidents you're describing. I'm going

23 to come back to the date a little later on in my questions, but may I

24 start by clarifying with you the statements that you had made, and again I

25 will put these to you and ask you to confirm, yes or no, that these

Page 779

1 statements were made at various times.

2 First of all, when you say you had escaped from the KLA and made

3 your way across country to VJ units that you encountered in Batusa, you

4 spoke orally to soldiers of the Yugoslav Army and told them what had

5 happened to you; is that correct?

6 A. Yes.

7 Q. You then, I think, made a video interview with soldiers of the

8 Yugoslav Army; is that correct?

9 A. Yes.

10 Q. And when was that in relation to you coming into contact with the

11 soldiers in Batusa? How long after you first met them did you make the

12 video interview?

13 A. I was there in the tents of the Yugoslav Army for about two hours

14 Q. And it was during that time that you made the video, was it?

15 A. No. That was after we went in the convoy with the Yugoslav Army

16 to the village of Molica.

17 Q. Was it on the same day?

18 A. Yes, it was.

19 Q. Thank you. And after that, I think you were taken by the soldiers

20 to the MUP, where you made a written statement; is that correct?

21 A. Yes.

22 Q. And you confirmed for us yesterday that in none of those

23 statements did you mention Ramush Haradinaj because at that time you had

24 no idea that the man you had seen was Ramush Haradinaj; is that correct?

25 A. Yes.

Page 780

1 Q. You then told us that you did not make any further statement about

2 these events at any time before you left Kosovo in June 1999; is that

3 correct?

4 A. Yes.

5 Q. And we have looked next at the statement that you made to the MUP

6 in December 2005 [sic]; we looked at that yesterday afternoon. And I

7 think you can confirm that you did not, during that interview, mention a

8 jeep, someone speaking the word "commander," or tell the officers that you

9 had recognised Ramush Haradinaj from the television, did you?

10 A. That is correct.

11 Q. Now, later, much later, you made a statement to an investigator

12 from the ICTY Prosecution whose name was Roel. Do you remember making

13 that statement?

14 A. I do.

15 MR. DI FAZIO: If Your Honours please, just a matter that -- a

16 very, very minor matter. The date of the MUP statement, December 2005, as

17 it appears in the transcript, I think that's just a minor mistake. That's

18 all. It should be fixed up for the transcript, though.

19 MR. EMMERSON: Yes, that should read December 2002.

20 Q. Just to be absolutely clear, the MUP statement is December 2002.

21 The statement that you made to the investigator from the ICTY, Witness 38,

22 was made in December 2005; is that correct?

23 A. Yes.

24 Q. Had you made any other written statements between the MUP

25 statement in December 2002 and the statement that you made to the OTP

Page 781

1 investigator in December 2005?

2 A. I don't remember.

3 Q. Can I ask you this: Is it right that the first time you mentioned

4 to anyone in authority the fact that you had recognised Ramush Haradinaj

5 as the fourth man was when you made the statement to the investigator from

6 the ICTY? That was the first time you made that connection?

7 A. That's right.

8 JUDGE HOEPFEL: Pardon? What do you mean by "the fourth man"?

9 MR. EMMERSON: The --

10 JUDGE HOEPFEL: I'm not sure if this question is clear enough.

11 MR. EMMERSON: Okay. Let me put the question again.

12 Q. The first time that you mentioned to anyone in authority that you

13 believed you had seen Ramush Haradinaj at the mill where you say you were

14 stripped naked and beaten was in the statement that you made to the ICTY

15 investigator in December 2005, wasn't it?

16 A. Yes, it was.

17 Q. So that was three years after your MUP statement, seven and a half

18 years after the event, and seven years since you say you had recognised

19 him on the television; is that right?

20 A. Yes.

21 Q. It was also seven months after he had been indicted in these

22 proceedings and the indictment had been made public. Can I ask you, did

23 you know that he had been indicted in these proceedings when you first

24 mentioned to anyone in authority that Ramush Haradinaj was the man you

25 believed you'd seen?

Page 782

1 A. No, I didn't know.

2 Q. I see.

3 MR. EMMERSON: Can we go into closed for just a moment, please.

4 [Private session]

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Page 783

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21 [Open session]

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

23 JUDGE ORIE: Thank you, Madam Registrar.


25 Q. I want to just clarify one or two matters about where you say your

Page 784

1 family were at the time that you were assaulted and stripped naked. Just

2 follow me, if you will, for a moment. When you were assaulted and

3 stripped naked and tied up before the jeep arrived, were you and your

4 father inside a building or outside the building, the mill?

5 A. We were outside the mill, by the mill, and the rest of the family

6 members were some 5 or 7 metres away from us in the forest.

7 Q. So they were also outside the mill throughout this, were they,

8 throughout this beating?

9 A. Yes. Yes, that's right.

10 Q. And similarly, during the assault that you say took place after

11 the jeep had left, were you and your father outside or inside the mill?

12 A. We were outside the mill throughout all that time. We were never

13 inside the mill.

14 Q. And the rest of your family, were they also outside the mill

15 during the second assault that took place after the jeep had left? Were

16 your family also outside?

17 A. Yes, they were outside the mill.

18 Q. So your family -- neither you nor your family went inside the mill

19 at all between the start of the assault and the end of the second

20 assault? Between the start of the first assault and the end of the

21 second assault, neither you nor your family went inside the mill building,

22 or any other building?

23 A. That's right. We never went inside.

24 Q. Now, you told us yesterday that at one point either your sister or

25 your sister-in-law took some children a little way away so that the

Page 785

1 children would not see what was happening to you. When they were taken a

2 little way away, were they still, then, outside the building?

3 A. Yes, yes, outside the building. They were just taken a bit away

4 from us so as not to see the torture that was being accorded us.

5 Q. Thank you. Now, you are absolutely clear, are you, that you had

6 been stripped and beaten and tied up before the jeep arrived? There's no

7 doubt about that in your mind at all?

8 A. No doubt at all.

9 MR. EMMERSON: Could we please look on the screen at Defence doc.

10 identification 1D1421, please. 1D1421. Just to remind the court officer,

11 all of these exhibits are not to be published.

12 JUDGE ORIE: Yes, Madam Registrar, that would be number ...?

13 THE REGISTRAR: Your Honour, this would be Exhibit number D2,

14 marked for identification.

15 JUDGE ORIE: Thank you, Madam Registrar.

16 Please proceed, Mr. Emmerson.


18 Q. Now, Witness 38, you've told us that you don't speak English. I

19 take it you don't read English either.

20 A. No.

21 Q. So I'm going to read to you slowly the passages I want to draw

22 your attention to, to let the interpreters translate them for you, all

23 right?

24 A. All right.

25 Q. Now, you had two meetings before you came to give your evidence

Page 786

1 with the lawyers for the Prosecution who you can see to your right; is

2 that correct?

3 A. Yes.

4 Q. At the first meeting, Mr. Re, the gentleman with the silver hair

5 immediately to your right, was present with Mr. Di Fazio, who we see as

6 the next counsel along in the line; is that correct?

7 A. It is.

8 Q. You then had a second meeting on Tuesday of this week in which

9 Mr. Di Fazio was there but Mr. Re was not. Do you remember that meeting?

10 A. Yes.

11 MR. EMMERSON: Can we please look on the screen at page 5 of this

12 document. And if we could just -- yes, thank you very much. If we could

13 just move the screen -- move the text up a little bit so that the words

14 "Proofing continued at the 6th of March" are at the top of the screen.

15 Q. Now, I want to just read to you and, where appropriate, summarise

16 to you what you are recorded as having told Mr. Di Fazio.

17 First of all, you are recorded as saying, and I'll just read you

18 the words: "The place in the Gaciferi house where we were kept was a

19 garage in the Gaciferi compound. Present in the garage were myself," and

20 then you list a number of members of your family.

21 You go on to say: "A KLA member came and he said my family should

22 follow him. I really can't remember if the" is it "Djulija family came

23 with us to the mill or not. I remember seeing them later."

24 You then confirmed that you went to a mill about 200 metres away

25 in the middle of the woods, and it was a water mill.

Page 787

1 You then said: "Half an hour later Aslan Luluni came and a boy

2 from the Tofa family (Nimon's nephew) came. The young guy was dressed in

3 civilian clothes. We were grouped sitting on the ground in the rain. I

4 remember the Suzuki, and I think it belonged to Muharem Knushi (Giqa).

5 That's when the man I know as Haradinaj turned up. He came with him.

6 There had been no mistreatment at this stage. Giqa and the person I think

7 was Ramush Haradinaj were talking. They had a walkie-talkie. They stood

8 away from us. Giqa had a black uniform."

9 And then you describe what Mr. Haradinaj, you say, was wearing.

10 You say: "They did not mention the name Ramush Haradinaj but they did use

11 the word 'commander'" You then say: "The one I think was Ramush said

12 that he had no time and had to go but he did say to Aslan Luluni to keep

13 talking to her."

14 Now, first of all, did the man that you say was Ramush Haradinaj

15 tell Aslan Luluni to keep talking to you or not? Because that's not what

16 you told us yesterday.

17 A. I assumed because he returned immediately that he was in some

18 place of command.

19 Q. So that was something that you --

20 A. That he got orders to continue talking to me, in fact. That's

21 what I assumed.

22 Q. That was something you assumed; it wasn't something that you heard

23 said?

24 A. No, I didn't hear him say anything. I just heard the word

25 "commander," that he immediately returned and start -- the same thing

Page 788

1 started all over again. He started beating us and ill-treating us all

2 over again.

3 Q. Why did you tell Mr. Di Fazio --

4 MR. DI FAZIO: If Your Honours please, I object to that question.

5 These aren't -- the witness hasn't adopted these. This is not a

6 statement; these are my notes. The witness has not had them read back to

7 her. She has not had an opportunity to digest them.


9 MR. DI FAZIO: She has not had an opportunity to correct them.

10 JUDGE ORIE: I see Mr. Emmerson accepts that the proper foundation

11 should be laid for it, and if that's not possible, then we might have a

12 different problem.

13 Yes, Mr. Guy-Smith.

14 MR. GUY-SMITH: Yes. I don't want to interrupt Mr. Emmerson's

15 examination, but I should remind the Chamber that some time ago I

16 specifically asked that proofing notes be delivered to us in verbatim form

17 so that we would not have this particular problem.


19 MR. GUY-SMITH: And we'll raise it again at a later point in time.

20 JUDGE ORIE: Yes, that's on the record, Mr. Guy-Smith.


22 Q. Well, the record of this meeting, Witness 38, says, and I'll ask

23 you in a moment to comment on whether you said these words, but the record

24 made by Mr. Di Fazio says that "At the time the jeep turned up, there had

25 been no mistreatment at this stage." Did you say that to Mr. Di Fazio or

Page 789

1 not?

2 A. I said that but a lot of time had passed. But I know that before

3 the jeep came, Aslan was maltreating us and that after the jeep, the same

4 thing continued.

5 Q. And you said that to Mr. Di Fazio, did you? You made that clear

6 to Mr. Di Fazio while you were having your proofing session, did you?

7 A. I didn't quite understand your question. Could you please repeat

8 it?

9 JUDGE ORIE: Mr. Emmerson is asking you the following: He read

10 what has been put on paper of your meeting with Mr. Di Fazio, and he read

11 to you that it says -- and now I read that: "There had been no

12 mistreatment at this stage. Giqa and the person I think was Ramush

13 Haradinaj were talking. They had a walkie-talkie. They stood away from

14 us." Mr. Emmerson would like to know whether that is what you told Mr. Di

15 Fazio.

16 THE WITNESS: [Interpretation] I -- maybe I was confused. I had

17 some sort of stage fright at that moment.

18 JUDGE ORIE: The question is not what may have explained why you

19 said so, but the first question is: Is what I just read, that is, "There

20 had been no mistreatment at this stage," did you say a similar thing or

21 did you say this, exactly in these words, to Mr. Di Fazio?

22 THE WITNESS: [Interpretation] I really don't know. I honestly

23 can't remember. I told him how we were mistreated. But when I told my

24 story, it wasn't in chronology. I skipped from one thing to another. And

25 there was the statement that I gave in Belgrade. But one thing I'm

Page 790

1 certain of is that I was mistreated before and after.

2 JUDGE ORIE: I see.

3 Mr. Emmerson, I'd like to --

4 Could you take your earphones off for a second, please?

5 Mr. Emmerson, and I'm also addressing you, Mr. Re, I am not a

6 native English speaker. When I read: "There had been no mistreatment at

7 this stage," I could -- but please correct me if I'm wrong, this language

8 seems to be, to me at least as a non-English speaker, ambiguous to the

9 extent that it could mean there had been no mistreatment up to and

10 including this stage, or that it could also mean that -- I don't know who

11 drafted it, whether that's a native speaker or not. But literally

12 translated to my language, it could also mean there had been no

13 mistreatment at this stage, so limited to that period of time, until that

14 stage. I don't know--

15 MR. EMMERSON: As a matter of English, it can't have that second

16 connotation because the words "had been" refer to everything up to and

17 including that stage. "There had been no mistreatment" means there was no

18 mistreatment prior to that point.

19 JUDGE ORIE: Thank you at least for that explanation, because it's

20 a subtlety perhaps in the language you have now explained.

21 A simple question to you, Mr. Di Fazio: Is there any audio

22 recording of this?

23 MR. DI FAZIO: No, there is not, if Your Honour please. There is

24 no visual or audio recording.

25 JUDGE ORIE: So that could assist us.

Page 791

1 MR. DI FAZIO: These are my words, my notes based on what was

2 interpreted to me.


4 MR. DI FAZIO: Often after lengthy passages of hearing the

5 witness -- what the interpreter said to me.

6 JUDGE ORIE: Yes. It's a summary of what was translated to you.

7 MR. DI FAZIO: Very much, Your Honour.

8 JUDGE ORIE: Mr. Guy-Smith, I see you're about to be on your feet.

9 I take it at least you find confirmation of what you said earlier in the

10 present discussion and --

11 MR. GUY-SMITH: Yes. I don't know how the Chamber wishes to deal

12 with it, because I know we're in the middle of an examination, but this is

13 going to become, obviously, a point of some critical importance, because

14 the position that we potentially will get into is ultimately having,

15 perhaps, someone like Mr. Di Fazio become a witness with regard to what

16 was said, which is, I think, not a position that any of us want to have

17 because it also raises a series of other issues.

18 JUDGE ORIE: Let's deal with that later.

19 MR. GUY-SMITH: Very well.

20 JUDGE ORIE: I take it at this moment I'll try to seek

21 clarification of the most urgent and most necessary points of the matter.

22 And I'd like to invite the witness to put on her earphones again and give

23 you an opportunity to continue, Mr. Emmerson.

24 Witness 38, don't worry about these procedural matters. It's --

25 we now continue the examination.

Page 792

1 Mr. Emmerson.


3 Q. Witness 38, did you or did you not tell Mr. Di Fazio on Tuesday

4 that the jeep -- by the time the jeep arrived, you had already been

5 stripped naked and assaulted? Did you tell him that or not?

6 A. I think I did, yes.

7 MR. EMMERSON: Well, Your Honours, that does potentially raise an

8 issue as far as Mr. Di Fazio's position is concerned. May I continue with

9 the cross-examination and raise that issue at the end of this witness'

10 evidence?

11 JUDGE ORIE: Yes. I think that would be better than to again

12 interrupt. Please proceed.


14 Q. I want to ask you now about the evidence you've been -- you've

15 given us about being left naked after you were stripped naked and how long

16 it was that you were naked, and I want to go through the evidence that

17 you've given just to make sure I've understood what you're saying

18 correctly.

19 Now, you told us yesterday that you and your father were stripped

20 naked at the mill and that you were tied up at the mill; is that right?

21 A. Not my father, except while they were searching him. And I was

22 stripped, indeed. Maybe it was mistranslated or misinterpreted, or they

23 simply didn't understand me. My father was not naked. He just had to

24 strip while he was being searched; then he got to put his clothes back on

25 again and I didn't.

Page 793

1 Q. Yes. I'm not -- I'm not -- I'm not trying to disagree with you or

2 to trip you up. I was asking you simply to confirm that both you and your

3 father were forced to remove your clothes for the first time whilst you

4 were at the mill; that's right, isn't it?

5 A. Yes, both I and my father. However, after my father was searched,

6 he was told to get dressed and it was not like that with me. I was

7 completely naked.

8 Q. Yes. So your father was told to get dressed and you remained

9 naked. Now, you told us yesterday that you eventually rejoined the convoy

10 and that you were still naked and your hands were still tied when you

11 rejoined the convoy; is that right?

12 A. Correct.

13 Q. Roughly what time did this incident at the mill happen? What time

14 of day?

15 A. Sometime in the afternoon. I don't know what time it was, but it

16 was the afternoon.

17 Q. And roughly what was the -- at what time did you join the convoy?

18 How long was it between the assault and you rejoining the convoy naked?

19 A. Two hours, two hours and a half was how long the struggle lasted,

20 and then they told me to join the convoy.

21 Q. Now, that night you've told us you stopped and spent the night,

22 sleeping overnight, in the woods; is that right?

23 A. Yes.

24 Q. And you were guarded all night whilst you were in the woods; is

25 that right?

Page 794

1 A. Yes.

2 Q. And the next day, whilst you were still at the same place in the

3 woods, you said a group of men came and were threatening to rape your

4 sister, but one of the men there said, "Why bother with that one when

5 this one is already naked." Do you remember saying that yesterday?

6 A. Yes, I do.

7 Q. So are we to assume that you spent the whole night up to that

8 point naked?

9 A. Yes.

10 Q. And were you naked for the whole of the following day, until the

11 next night?

12 A. Yes.

13 Q. And were you naked for the whole of the following night?

14 A. I was, until just before sunrise.

15 Q. And at that point I think you told us that you were allowed to get

16 dressed because you were complaining that you had a fever because you'd

17 been naked in the rain for two nights and one day and half a day. So from

18 the day that you were first stripped at the mill through the first night

19 and the whole of the next day and most of the following night, you'd been

20 naked and you said that you had a fever and were given your clothes back

21 at that point; is that correct?

22 A. Yes, yes.

23 Q. Who gave you your clothes back?

24 A. The person who was guarding us.

25 Q. So he'd carried your clothes with you whilst you walked naked from

Page 795

1 the mill, had he?

2 THE INTERPRETER: Could the witness please repeat.

3 JUDGE ORIE: Witness 38, the interpreters could not hear your

4 answer. Would you please repeat your answer to the question whether the

5 person guarding you, as Mr. Emmerson suggested, carried your clothes with

6 you whilst you walked naked from the mill. Could you respond to that

7 question, please?

8 THE WITNESS: [Interpretation] I said my sister had picked up my

9 things and she was carrying them, but she didn't to dare give them to me

10 to get dressed.


12 Q. Now, Witness 38, if it's true that you were held naked for 36

13 hours in the rain and the cold and in front of so many people along the

14 way, that that must have been a very humiliating experience for you; is

15 that right?

16 A. Yes. Very, very humiliating, indeed.

17 Q. It's not something you could be mistaken about, is it?

18 A. No.

19 MR. EMMERSON: Can we please look at Defence document

20 identification 1382 in English and 1376 in the Serbian.

21 Q. The document that you're about to see, Witness 38, is, again, the

22 statement that you made to the MUP in -- at the end of 2002, when you told

23 us they came to visit you and you made a statement that you signed.

24 MR. EMMERSON: I understand it's Defence Exhibit 1; is that right?

25 Could we look, please, at page 2, at the bottom in the English, and in

Page 796

1 the Serbian, if we could look please at, also, page 2 of the text, second

2 half of the page. Now, if we can just go down to the paragraph -- yes --

3 with the word beginning "Negdje," if we can have that paragraph up,

4 please. Before -- I think that's sufficient.

5 Q. Now, we have the English translation of this document, and in that

6 paragraph, Witness 38, you describe what you say Aslan Luluni did to you

7 at 8.00, and you say that he tied your hands, that he made you take your

8 clothes off, that he made you eat your chequebook, your bankbook and that

9 he abused you and hit you and threatened you. And then towards the bottom

10 of the paragraph, you say: "Aslan went along with this and on leaving

11 said to the guard who was with us all the time, 'Don't let them run away

12 or else I'll kill,'" and then we need to go on to page 3 in the English?

13 MR. EMMERSON: Do we have page 3 in the English?

14 JUDGE ORIE: There still seems to be different versions. In my

15 English version, this still is on page --

16 MR. EMMERSON: It's at the bottom of page -- It should be the last

17 line of page 2. Yes, and we now need to move on to the top of page 3.

18 JUDGE ORIE: Yes. But there's still more than what you're

19 reading.

20 MR. EMMERSON: It's obviously printed out differently from mine.

21 Does your paragraph going on: "Then the two of them and Nimon Tofa's son

22 went hurriedly away. Half an hour later the guard told me to get

23 dressed." Do Your Honours have that.

24 JUDGE ORIE: Yes, on the bottom of page 2.

25 MR. EMMERSON: And if we can go to the very bottom of the Serbian

Page 797

1 page, please.

2 Q. Is that your signature at the bottom, Witness 38?

3 A. It is.

4 Q. You see, you've been recorded by the police officers who took this

5 statement as saying that you were told to get dressed after half an hour.

6 A. I don't remember saying that at all. I was not dressed, I was

7 naked.

8 Q. You speak the same language, don't you, as the person who was

9 taking that statement?

10 A. Yes.

11 Q. And you signed it on that very page.

12 A. Yes, I signed it. It's my signature.

13 Q. I want now to look at --

14 MR. EMMERSON: I'm sorry.

15 JUDGE HOEPFEL: Mr. Emmerson, you did not ask if you, Witness,

16 read it before signing it.

17 THE WITNESS: [Interpretation] No. No, I was very poorly. I was

18 sedated. I could barely speak and to tell you frankly --

19 JUDGE HOEPFEL: Thank you.


21 Q. We've already looked at this statement, Witness 38, and we've seen

22 all the names you were able to remember and the precise times that you

23 were able to recall at which these incidents took place. We looked at it

24 yesterday afternoon. Do you remember?

25 A. Yes.

Page 798

1 Q. You were able to give a precise time for the period of time when

2 you first saw Muharem Knushi at 6.00 p.m. And you were able to give the

3 time of about 8.00 in the evening for the time that you say you were

4 assaulted by Aslan Luluni.

5 A. They helped me because they had the same statement, but really I

6 had had a lot of tranquilisers by then. I don't know what I was saying.

7 They have that statement that I gave the first time and I really don't

8 know, I don't quite recall all that process.

9 Q. All right. Let's move on to another topic, briefly. I said to

10 you I was going to come back to the question of dates on which this event

11 occurred, and I want to just clarify with you, first of all, as I've done

12 before at each stage of the way, the testimony you've already given to

13 make sure that we've all understood it properly, because you told us

14 yesterday - and, again, correct me if I have this wrong - you told us

15 yesterday that sometime around the 6th or 7th of May, from your window you

16 saw a group of vehicles arrive and men distributing weapons. Do you

17 remember saying that yesterday?

18 A. I remember. I remember saying that. I think it was in the middle

19 of May. I don't know the exact date. I'm not sure about the date. It's

20 been a long time ago. I know that I gave a statement to the MUP, the

21 Ministry of the Interior, the same day that I escaped.

22 Q. Yes. I'm going back to the day when you saw the vehicles arrive

23 and the weapons being distributed in the village.

24 JUDGE ORIE: Mr. Emmerson, just to make -- you asked the witness

25 whether she remembered that she said the 6th or the 7th of May. As a

Page 799

1 matter of fact, the record says that she said mid-May, the 6th or the 7th,

2 apart from any logic in that. But that's what she said yesterday.

3 MR. EMMERSON: I think if Your Honour looks two lines down, she

4 then explains, having clarified, that it was the 6th or the 7th, that it

5 was early May, not mid-May.

6 JUDGE ORIE: Yes. Please proceed.


8 Q. But the date is probably less important than the chronology. You

9 remember that date, do you?

10 JUDGE HOEPFEL: Which evening?


12 Q. The evening when the men came with the cars and were distributing

13 weapons. You remember that occasion; yes? Shall I put the question again

14 or ...

15 JUDGE ORIE: Could you --

16 THE WITNESS: [Interpretation] I remember the event but I'm not

17 really sure about the date.

18 THE INTERPRETER: Interpreter's note: Mr. Emmerson's microphone

19 is on while the witness is speaking which reduces audibility considerably.

20 JUDGE ORIE: Yes, I did understand, Witness 38, that Mr. Emmerson

21 is not that much focusing on the date but is focusing on the event when

22 the people came and distributed the weapons. Yes? Please focus on that.

23 Please proceed, Mr. Emmerson.


25 Q. Now, you told us in your evidence yesterday that it was on that

Page 800

1 same day that a stone was thrown through your window, that night. Do you

2 remember saying that?

3 A. Yes.

4 Q. And is that right?

5 A. Yes.

6 Q. You then told us that it was the following day, the day after the

7 weapons had been distributed, that you saw Qemajl Shalja addressing a

8 number of people in the village; is that correct?

9 A. Yes. But before that, I had gone to the democratic party quarters

10 to complain about that rock thrown into my window.

11 Q. So the day after the rock was thrown, you went first to the

12 democratic party to complain about the rock, and then after that you heard

13 Qemajl Shalja addressing a crowd; is that right?

14 A. Yes.

15 Q. And the man at the democratic party suggested that you might like

16 to spend the night with a neighbour, that night; is that correct?

17 A. Yes, to go away from my apartment. He said: "I can't do anything

18 to help you, but just move away."

19 Q. Did he say to you that it's probably just a street gang?

20 A. Yes.

21 Q. And so that night you did stay with your neighbour; is that

22 correct?

23 A. Yes.

24 Q. And did your sister-in-law go with you to stay with your neighbour

25 that night?

Page 801

1 A. She did.

2 Q. And you say it was in the morning, the following morning, that you

3 heard gun-fire towards the house of your neighbour; is that correct?

4 A. Yes. I heard it myself from the house where we were sleeping.

5 Q. And then you went from that house to your own apartment, avoiding

6 the gun-fire; is that correct?

7 A. Yes.

8 Q. And did you go back to your own house with your sister-in-law?

9 A. They joined us a bit later. We couldn't all go in a group. We

10 had to go one by one.

11 Q. But you were back at your flat by the time your sister-in-law got

12 there; is that right?

13 A. Yes.

14 Q. And then you said some KLA men came in, or some men came in, I

15 think two in uniform and two in civilian clothes, but it's perhaps not

16 critical at the moment, but some men came into the flat and told you to

17 stick together and join the convoy; is that right?

18 A. The convoy, yes.

19 Q. And that those men were being nice to you, were they, trying to

20 help you, those particular men at that time?

21 A. Yes.

22 Q. So just to recap the timing, was it later that same day that you

23 were abused at the mill?

24 A. Yes.

25 Q. So to be absolutely clear, you were abused at the mill two days

Page 802

1 after you first saw the men arrive with the weapons?

2 A. Yes.

3 Q. Now, before we look at the statement that you made to the

4 Prosecution in this case, I wonder if I can just briefly to ask you one or

5 two questions about what happened whilst you were in the flat, between

6 going from your neighbour's house and leaving to join the convoy.

7 First of all, was there ever an occasion whilst you were in the

8 flat when anybody fired bullets into your flat, so that bullets landed in

9 the -- in your flat whilst you were in there?

10 A. There was strong fire by that time. There was a lot of fighting.

11 My own apartment and my neighbours were targeted. Everybody came out of

12 their houses and apartments, and that's how the convoy was formed.

13 Q. Yes. Let me put my question again. Did any bullets land in your

14 apartment?

15 A. I didn't have time to look, but there is a bullet-hole in the

16 wall, yes, on the front side.

17 MR. EMMERSON: Could we look briefly, please - and it will be

18 brief - at Defence document identification 1463, and in the Albanian,

19 1469, and at page 3 of that document, paragraph 8. Paragraph 8 --

20 JUDGE ORIE: Before we move on, I'd like to seek one

21 clarification.

22 Witness 38, you said you stayed overnight in the house of a

23 neighbour. You were talking about going from your apartment to the

24 neighbour's house. Now, the neighbour's house, is that also an apartment?

25 THE WITNESS: [Interpretation] A privately owned house.

Page 803

1 JUDGE ORIE: Yes. So that's not in the same block as where your

2 apartment was?

3 THE WITNESS: [Interpretation] No.

4 JUDGE ORIE: Thank you for this clarification.

5 Please proceed, Mr. Emmerson.


7 Q. These men who came into your apartment to help you out and take

8 you to the convoy, they weren't accusing you of killing anybody, were

9 they?

10 A. No, no, later some --

11 THE INTERPRETER: Could other microphones be switched off? Can

12 the witness please repeat? We didn't hear any of this.

13 JUDGE ORIE: Witness, could you please repeat your answer, but

14 perhaps could the -- yes. Could you please repeat your answer?

15 THE WITNESS: [Interpretation] They told us to get out of our

16 homes, of our houses, to join the column. They did not mistreat us, and I

17 couldn't recognise them because they were wearing masks. There were

18 masked people, and the police.


20 Q. But you're absolutely clear that they were trying to help you and

21 were being nice to you at that point.

22 A. Yes, they just told us to get out, and they just didn't let us put

23 any more clothes on. I had to get out in the track suit I happened to be

24 wearing. I just grabbed my bag with my personal papers that was handy,

25 and that's all.

Page 804

1 MR. EMMERSON: So could we please look in the English then at page

2 3, paragraph 8, and also in the Albanian, at paragraph 8 of this document,

3 please.

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Private session]

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 805











11 Pages 805-807 redacted. Private session.















Page 808

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 [Open session]

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

17 JUDGE ORIE: Thank you, Madam Registrar. I use the words "thank

18 you, Madam Registrar," to confirm that it's a Chamber's decision without

19 spoken communication earlier; I agree with the Registrar.

20 MR. EMMERSON: I will begin to pick up those formalities as a

21 matter of second nature as the trial proceeds. I'm sorry if from time to

22 time --

23 JUDGE ORIE: No problem.


25 Q. But just before we look, then, at your witness statement for this

Page 809

1 chronology, you mentioned yesterday that you initially joined the

2 convict -- the convoy in the centre of Junik, but then you asked to go in

3 the direction of Rastavica but they wouldn't let you; is that right?

4 A. That's right.

5 Q. I want to ask you some questions a little later on about that.

6 Now, could we look, please, at the witness statement you made to

7 the Prosecution in these proceedings.

8 MR. EMMERSON: Which is Defence document identification 1429 in

9 the English, and the Albanian is attached at 1446.

10 THE INTERPRETER: Turn your microphone off, please.

11 JUDGE ORIE: Has that got a number already? Yes?


13 JUDGE ORIE: Not yet.

14 Madam Registrar.

15 THE REGISTRAR: Your Honours, this will be Exhibit number D4,

16 marked for identification.

17 JUDGE ORIE: Thank you, Madam Registrar.


19 Q. First of all, could we just look to the bottom of the page for you

20 to confirm that that was your signature. I think the -- in fact, I think

21 your signature may appear on the English version.

22 MR. EMMERSON: Could we just briefly show the witness the English

23 version.

24 Q. Is that your signature?

25 A. It is.

Page 810

1 JUDGE HOEPFEL: There are a number of signatures, Mr. Emmerson,

2 aren't there?

3 MR. EMMERSON: The one where you see the witness' name, on the

4 left-hand side.

5 Q. That is your signature, is it, on the left-hand side of that

6 sheet?

7 A. Yes.

8 Q. And just so that we're clear how this statement came to be

9 recorded, you were interviewed, I think, on two days, the 13th and 14th of

10 December, by a Prosecution investigator called Roel Versonnen; is that

11 right?

12 A. Yes.

13 Q. And at the end of the interview, a statement was compiled from

14 what you had said and read over to you in Serbian; is that correct?

15 A. That's correct.

16 Q. And you were told that you could add anything or change anything

17 that was incorrect about the statement, weren't you?

18 A. I don't remember that.

19 Q. Well, you knew that you were being asked to sign or put your

20 initials on every page, didn't you?

21 A. Yes.

22 Q. And you knew that the statement was supposed to record the truth,

23 didn't you?

24 A. I did.

25 JUDGE HOEPFEL: May we, again, ask a little more complete.

Page 811

1 Witness, did you also read yourself before what you then signed,

2 or did you think -- did you not read it?

3 THE WITNESS: [Interpretation] They read it out to me.

4 MR. EMMERSON: Yes, I think --

5 JUDGE HOEPFEL: Thank you.

6 MR. EMMERSON: -- I think it's a clear position that this

7 statement was recorded in English and then read out to the witness, who

8 was asked then to sign each page and subsequently translated into

9 Albanian.

10 Q. So if we can just start with the chronology point, first of all,

11 just to make sure we've got our dates correct.

12 If you look at paragraphs 12, 13, and 14, please, if they could be

13 brought up on the screen. The only point I want to direct your attention

14 to is that these paragraphs describe the event where vehicles turn up and

15 weapons are distributed, and I'm just asking you to confirm, in the first

16 line of paragraph 13, that the date you then gave, as best you could, was

17 the 10th of May; correct?

18 A. Yes.

19 Q. Now, what I'm going to do is to go through those paragraphs of

20 your statement which take the chronology on. I know that others are very

21 familiar with this document so that if I, in any way, make a mistake, I

22 will be corrected.

23 MR. EMMERSON: Can we drop down to paragraph 23.

24 Q. Now, in paragraph 23, you say that on that same evening, when

25 you'd seen the weapons being distributed, a friend of yours who was

Page 812

1 Albanian came to see you that evening when the weapons had arrived and

2 advised you to take your children out of Junik; is that right?

3 A. No. That was towards the end of April or thereabouts. Yes, she

4 did come, that much is true, but I think that that took place in late

5 April.

6 JUDGE ORIE: Yes, Mr. Emmerson, you see, I'm looking -- following

7 in the e-court system. We're talking about the statement dated -- is that

8 the 21st of January, 2007? Is that the one?


10 JUDGE ORIE: No, then I'm --

11 MR. EMMERSON: No, sorry.

12 JUDGE ORIE: Because I have a statement in front of me which I ...

13 MR. EMMERSON: I think you be looking at the last witness's

14 statement that I put in, in closed session.


16 MR. EMMERSON: Can we be clear, the one that needs to be on the

17 screen now should have, in its English version, a document identification

18 1429.

19 JUDGE ORIE: I've got the wrong one in front of me so I'll not

20 bother you with the problems with that document.

21 MR. EMMERSON: But does Your Honour have the right one now?

22 JUDGE ORIE: Not yet, but I'll find it. Please proceed. Yes.

23 MR. EMMERSON: Can I ask whether either of Your Honour's

24 colleagues have a similar difficulty?

25 JUDGE ORIE: No, no, it's just my struggle with the e-court

Page 813

1 system. Nothing else.

2 MR. EMMERSON: Very well.

3 Q. So, sir, if we could just look at paragraph 23, you there told the

4 investigator that it was on the same evening, or you're recorded as having

5 told the investigator that it was on the same evening as the guns were

6 distributed that your friend asked you, or suggested to you, that you

7 should take your children out of Junik. Do you see that? It says so in

8 terms: "On the very evening when the weapons had arrived."

9 A. No, not that evening, not that evening when the weapons were

10 being distributed. I had sent my children away in April. It is true

11 that she suggested that I should send my children away, but that was not

12 that evening. There was no way my children could have been there that

13 evening or that I could have sent them then that night, sent them away

14 anywhere, to Belgrade or anywhere. Otherwise, everything was blocked at

15 the time.

16 Q. I'm not -- I mean, that's exactly what I'm exploring with you,

17 whether you're right about that, Witness 38.

18 MR. EMMERSON: Let's look over to the following page and paragraph

19 26, please. If we look at paragraphs 26 and then 27.

20 Q. You there say, that night, that you took your three children by

21 bus to Belgrade, accompanied by your Albanian friend, that you left your

22 children with relatives in Belgrade and returned to Kosovo by bus with the

23 friend the same day. And if we then look at 29, you say you spent that

24 night in Gjakova and then walked to Junik the following day. Do you

25 remember that?

Page 814

1 A. Yes.

2 Q. You can see in your witness statement all of that is supposed to

3 have happened after, and immediately after, the weapons were distributed.

4 Now, are you telling us now that it happened before the weapons were

5 distributed?

6 A. Yes, that is what I'm saying. It was before that. Roads had

7 already been blocked and I had -- the only option I had was this last bus

8 that was going to Belgrade from Junik. She helped me out and I heeded her

9 advice. But the weaponry came only later, after I had returned to my

10 apartment. But the children, my children, had already gone.

11 Q. And do you think that you made that clear when you were speaking

12 to the OTP investigator and he's written down what you said wrongly, or do

13 you think that you may have said what he has written down and you have

14 signed?

15 A. Well, there might have been a mistake, perhaps. I did not tell

16 them the exact date. I don't even remember it exactly now. I know that

17 it was in April that I sent my children to Belgrade, although I do think

18 that nobody actually asked me about the exact date when that had happened,

19 and I had taken my children to Belgrade before that.

20 Q. Well, whether they asked you or not, you told them in terms, in

21 paragraph 23, that all of this happened on the night that you saw the

22 weapons being distributed. It says that -- the statement is as clear as

23 it can be, isn't it?

24 A. Your Honours, I know that it is written here, but there is no way

25 I could have taken my children to Belgrade that same night, so I say I

Page 815

1 may have made a mistake. I might have mis-explained myself. But what I

2 do know is that I had sent my children away from home in April, so there

3 is no way I could have sent them -- taken them to Belgrade on another

4 night.

5 Q. So if we now look at paragraphs 30 and 31, you say that when you

6 got back to Junik after dropping your children off in Belgrade, you saw

7 then that there were armed men all over the village and you say the

8 situation was chaotic and tense and that you did not dare to leave your

9 apartment for two weeks. Do you see that?

10 A. Yes.

11 Q. So what you told --

12 A. I do see that.

13 Q. What you told the Prosecution investigator was that there was at

14 least two weeks between you seeing the weapons distributed and the war

15 breaking out in Junik. Now, is that right or is it wrong?

16 A. It is true that I saw on the entrance to Junik, when I was

17 returning on foot with my friend, a manned check-point, manned by KLA --

18 KLA members who were armed, whereas all the people in the centre of Junik

19 had not been armed yet by that time.

20 Q. The question I was asking you is whether there was a two-week

21 interval between you seeing the weapons being distributed and the outbreak

22 of war, as you've described it, in Junik; and that during those two weeks

23 you were inside your flat. Is that true or is it not?

24 A. From April, and for two weeks after that, I was in the apartment.

25 But when they threw the rock into my window, that is what I saw with my

Page 816

1 very own eyes.

2 Q. Now, if we look at paragraph 35, you say that happened on the 27th

3 of May. Is that right or is that wrong?

4 A. Yes, I can see that it is on the 27th of May, but I do not

5 remember the date. I may have said the 27th of May, but I do know that I

6 took my children to Belgrade in the month of April.

7 Q. And the night when the rock was thrown, you say you went the

8 following day to speak to the president of the democratic party and you

9 spent the following night at your neighbour's house; correct?

10 A. Yes, good.

11 Q. So that would mean that the war broke out on the morning of the

12 29th, wouldn't it?

13 A. Well, approximately so, but I cannot really recall the dates now

14 exactly. I cannot recall that. It is true that I went to Ruzdija's place

15 and I asked her to help me.

16 Q. Well, can we now look at what you told the OTP investigator what

17 happened inside the flat when you went back there. Can you look at

18 paragraph 45. I just want to ask you about that. What condition was the

19 flat in when you went back?

20 A. When I got back after four months or so, a bit more, my apartment

21 was -- my apartment was a shambles. It was chaos. There was a killed dog

22 in each of the rooms and everything was pock-marked, and all the walls and

23 the pictures in the house, the photographs.

24 Q. That was in June. This passage of your statement is referring to

25 the condition your house was in when you went back that morning from your

Page 817

1 neighbour's house. If we look at paragraph 44: "We managed to leave the

2 house through the garden. We sneaked back to my apartment. When we

3 arrived at my apartment, I could see that the front door was wide open,

4 the lock was --"

5 JUDGE ORIE: You're reading.

6 MR. EMMERSON: "And the lock was broken and our belongings were

7 scattered around. After ten minutes, three armed KLA soldiers came into

8 the apartment." Was the apartment in that condition when you went back

9 there, or was your father and other relatives inside the apartment as you

10 told us yesterday? What was the condition of it?

11 A. They were in the apartment; my father and my step-mother were

12 sleeping in the apartment.

13 Q. Had it been ransacked? Was the door broken; yes or no?

14 A. I don't remember that. I knew that my father was there with his

15 wife and he went to unharness the horse which was in the garden. And I

16 didn't have time to ask him any questions. We just went in and went out

17 and joined the column, and I never asked later about it.

18 Q. No, I'm not asking about what you said to your father. I'm asking

19 you a simple question. And with respect, Witness 38, you must know the

20 answer to this because you were in the flat and you've told us you were

21 packing your belongings when the KLA men came in, or you packed your

22 belongings once the KLA men came in.

23 Now, you've told us now that your father was there. I'm asking

24 you whether what you said to the OTP investigator, that the house was --

25 the front door was wide open, the lock was broken, and your belongings

Page 818

1 were scattered around, is true or not.

2 A. It is. It is. That is what I stated.

3 Q. Yes. Is it true, what you stated, or not? Was the house in

4 that -- flat in that condition; yes or no?

5 A. Yes. The door was wide open when I came from my neighbour's

6 place, and I was unable, in fact, to pack my belongings but just a little

7 bag in which I kept my personal papers.

8 JUDGE ORIE: Mr. Emmerson, I'm looking at the clock. Could you

9 give us an indication.

10 MR. EMMERSON: Yes. Fifteen minutes at the most. Probably ten.


12 May I ask other counsel, how much time do you need?

13 MR. GUY-SMITH: I had intended on approximately 15 minutes. I

14 believe, based on Mr. Emmerson's examination thus far, that I probably

15 have questions that will not go further than three or four minutes. And

16 to the extent that Mr. Emmerson may need any additional time, if such is

17 the case, I would be happy to cede my time to him and limit myself to

18 three or four minutes.

19 JUDGE ORIE: Mr. Harvey.

20 MR. HARVEY: I will not be any time at all with this witness,

21 Your Honour.

22 JUDGE ORIE: Yes, thank you.

23 Then I suggest, Mr. Emmerson, let's see whether you can finish

24 within the next ten minutes and then -- we'll then have a break.


Page 819

1 Q. Can we now look to page 63 of this statement where you deal with

2 what took place at the mill, and I'm going to be ask you about paragraphs

3 63 all the way down to 74. Can we start with 63, first of all, just to

4 set the scene, you say: "We all went outside" -- this is before you got

5 to the mill and you were in Gacifer. "We all went outside, me and my

6 family, and Isuf Djaljiaj and his wife, they took us to an old mill in the

7 woods. They told us to sit on the ground next to the mill and left us

8 there with one KLA soldier from Junik whose name I cannot remember. He

9 was armed with a semi-automatic rifle and dressed in civilian clothes."

10 Now, is that right?

11 A. Yes.

12 Q. And that was not Aslan Luluni, because you knew his name, didn't

13 you?

14 A. Yes.

15 Q. "He told us to keep quiet because the boss would come to talk to

16 us. In the meantime, it started raining. I remember the rain lasted for

17 three days. After about one hour, the same Suzuki 4X4 vehicle, three

18 days. After about one hour, the same Suzuki 4X4 vehicle, as mentioned

19 above, arrived to the spot with Aslan Luluni, Muharem Knushi, also known

20 as Giqa, and Nimon Tofa's nephew, and one man whom I did not know but whom

21 I later on recognised as Ramush Haradinaj."

22 Now, first of all, is it right that Aslan Luluni came in the

23 jeep?

24 A. No, no, he came on foot with Nimon Tofa's nephew.

25 Q. So did you tell the OTP investigator that he had come in the

Page 820

1 jeep?

2 A. No, no, he came on foot. I didn't.

3 Q. And then you describe what you say Aslan Luluni and Muharem Knushi

4 and the fourth man were wearing. And then at paragraph 69, you're

5 recorded as saying this: "The four of them were standing about two or

6 three metres from where we were sitting." Is that right? Were they

7 standing two or three metres from where you were sitting, or were they

8 standing 20 or 30 metres, with bushes and trees in between, as you told us

9 yesterday?

10 A. No. It was a greater distance. Maybe I was wrong about the

11 distance. It was a greater distance than two or three metres. If it had

12 been just two or three metres, I would have been able to hear what they

13 were saying, but it was a greater distance than two or three metres.

14 Q. And as you've told us so far, it was that you couldn't hear what

15 they were saying and the only word you could hear was "commandant"; that's

16 right, isn't it?

17 A. Yes, yes.

18 Q. You go on, or are recorded as going on in this statement to

19 say, "All of us could hear Aslan Luluni saying the following to the fourth

20 man: 'Commander Ramush Haradinaj, the people we have captured are at your

21 disposal.'"

22 Now, yesterday I put that to you in terms and you said quite

23 categorically you were sure you did not and could not have said

24 anything like that. Did you or did you not hear one -- Aslan Luluni

25 say, "Commander Ramush Haradinaj, the people we have captured are at your

Page 821

1 disposal." Did you hear it or did you not?

2 A. No, no, no. Just the word "commander."

3 Q. So did the OTP investigator make this up for himself or was that

4 something that you told him at the time?

5 A. I don't know. Maybe it was an interpretation problem or maybe I

6 said something, really. But it's such a long time ago that I can't

7 recollect exactly how it was. Some things I did say. Not the whole

8 sentence you just pronounced, but the word "commander," I heard that.

9 Q. This was read over to you in a language you understood, Witness

10 38, and you signed this page. Are you lying in the evidence that you're

11 giving?

12 A. No. No, I'm not lying. They did read it to me. That's right.

13 But I'm really sorry, it's a long time ago. I really can't remember. But

14 I gave statements in many places, as you can see for yourselves, but you

15 must understand I was ill, I was in a state of shock. It was a great

16 trauma to me. I heard the word "commander."

17 Q. You weren't ill when you made this statement to the OTP

18 investigator, were you, Witness 38?

19 A. Yes. I, who had never been -- had to worry in my life about sugar

20 or fat in my blood, I suddenly have to watch out for all that and I have

21 high blood pressure.

22 Q. And does that plain --

23 JUDGE ORIE: Mr. Re, is there an audio recording of this

24 interview? Does that exist?

25 MR. RE: Not that I'm aware of.

Page 822

1 JUDGE ORIE: Please proceed, Mr. Emmerson.


3 Q. Does your blood-sugar level explain why, in the first sentence of

4 paragraph 70, you say that those words, "Commander Ramush Haradinaj, the

5 people we have captured are at your disposal," that those words are how

6 you and your relatives found out the identity of the man? Is that because

7 of your blood sugar?

8 A. No, no. I don't know, I don't know. I'm really at the end of my

9 wits. I'm really sorry. Maybe I did say that, but I was exhausted then.

10 My sugar level was really high. But the truth is the only thing I heard

11 then distinctly was "commander," and maybe I also heard --

12 THE INTERPRETER: The interpreter is not quite sure about the end

13 of this sentence. I'm sorry.

14 JUDGE ORIE: Could you please repeat the last part of your

15 answer, where you said you heard the word "commander," and let me just

16 see what -- "and maybe I also heard," you said. What did you maybe also

17 heard -- hear?

18 THE WITNESS: [Interpretation] Only the word "commander." It was

19 really 20 to 30 metres away from me and I couldn't. They were talking but

20 I couldn't hear because I had been mistreated, slapped about, and I was

21 sitting there by the mill.

22 JUDGE ORIE: Witness 38, I think Mr. Emmerson is trying to explore

23 how to understand that a -- quite a couple years after this event took

24 place you gave a statement --

25 MR. EMMERSON: I'm sorry, was Your Honour referring to this

Page 823

1 statement?


3 MR. EMMERSON: Seven and a half years after.

4 JUDGE ORIE: Yes. That where you then told to the person who

5 interviewed you that you knew about the name of Mr. Haradinaj because you

6 then heard someone addressing him as "Commander Ramush Haradinaj," whereas

7 in this courtroom you explained to us that you did not know the name at

8 the time but that you recognised that person from television and that's

9 how you found out that it was, as you said, Mr. Haradinaj.

10 So in the statement you said: "It's because I heard others

11 addressing him by his name and that's how I found out that it was

12 Mr. Haradinaj," whereas in this courtroom you said: "It was because I saw

13 him on television."

14 Now, Mr. Emmerson is puzzled by these two quite different versions

15 of how you found out about the identity of the person that appeared at the

16 mill. Could you help him? Could you help us?

17 THE WITNESS: [Interpretation] I'll tell you all I know. I saw him

18 there at the mill and I heard that man addressing him as commander, and

19 then three or four months later I saw him on TV and I assumed that it must

20 be the man because he had been addressed as commander. But at that time I

21 was not quite certain that it was him, but when I saw him on TV I thought

22 it was him and they addressed him as commander.

23 JUDGE ORIE: Yes, Mr. Emmerson.


25 Q. Could we look at paragraph 73. I have two more paragraphs I need

Page 824

1 paragraphs I need to ask about before we can conclude. Could we look at

2 paragraph 73. There you are recorded as having told the investigator that

3 Ramush Haradinaj and Muharem Knushi ordered Aslan Luluni to search you and

4 your father and to use force if necessary to get information from you.

5 That's not true, is it?

6 A. I didn't hear what they said to me, but he returned. I didn't

7 hear what was being said. But he returned and continued maltreating me,

8 so that I assumed that had been the order given him.

9 Q. To search you when you were already naked.

10 A. I had already been searched. I thought that he had been given the

11 order to come and continue to maltreat us. That was my assumption. If

12 someone comes and beats you up and goes and talks to a person and then

13 returns and starts mistreating you again, that was what I just assumed.

14 JUDGE ORIE: Mr. Emmerson, would you please move to your next

15 question.

16 MR. EMMERSON: Final question, if I may.

17 Q. Could we please look at 74, 75, and 76, because after this account

18 that you have given, you then say: "Then," that is after those words you

19 said were spoken, "Then Ramush Haradinaj was called over the radio. I

20 could not hear what they were talking about, but I know that he and Knushi

21 left the spot immediately. They left by the 4X4 Suzuki vehicle driven by

22 Knushi. Aslan Luluni and Nimon Tofa's nephew stayed with us. Luluni

23 first stripped my father naked in front of us."

24 And then dropping down to paragraph 79: "When he finished beating

25 my father, he turned to me. He stripped me naked as well and put a knife

Page 825

1 against my throat."

2 Now, what you told the OTP investigator, Witness 38, is exactly

3 what I suggest you told Mr. Di Fazio on Tuesday, which is that this

4 incident of the jeep took place before you were abused and that at the

5 time the jeep arrived, you had not been ill-treated, just as you said in

6 the statement here and just as you told Mr. Di Fazio on Tuesday.

7 THE INTERPRETER: Microphone, please.

8 THE WITNESS: [Interpretation] Well, yes. They came before that

9 and maltreated us, but in the meanwhile they stopped while they went to

10 the jeep. And after that they returned to us again and maltreated us

11 again for some 10 to 15 minutes and then they went away. But they brought

12 a man to guard us and left him there with us.

13 JUDGE ORIE: Witness 38, one of the questions that puzzles

14 Mr. Emmerson at this moment is that at the time - at least that's how it's

15 put on paper - that you were recorded to have said that you were stripped

16 naked after the jeep had left, whereas your testimony in this court was

17 that you were stripped naked already before the jeep arrived, that you

18 were still naked when these people in the jeep were there. So there is a

19 difference in these two versions of the story and Mr. Emmerson is puzzled

20 by what's the right story and why is there a difference between these two

21 versions. Do you have an explanation for that or ...

22 THE WITNESS: [Interpretation] Your Honours, I know that before the

23 jeep and after the jeep, they came and maltreated me, and I was stripped

24 naked. Perhaps the questions asked me then were not the same -- were not

25 phrased in the same way as you are putting them to me now, whether it was

Page 826

1 before or after, so I didn't give the proper question -- answer. But I

2 was naked from the beginning to the end.

3 JUDGE ORIE: Mr. Emmerson.

4 MR. EMMERSON: I've no further questions.


6 Witness 38, we'll have a break now. We'll resume at 4.30. Then

7 there will be a relatively short examination by one of the other counsel,

8 the Judges might have more questions for you, and we'll see whether there

9 are any further questions to be put to you by the Prosecution.

10 We stand adjourned until 4.30.

11 --- Recess taken at 4.02 p.m.

12 --- On resuming at 4.33 p.m.

13 JUDGE ORIE: Witness 38, you'll now be cross-examined by

14 Mr. Guy-Smith. Mr. Guy-Smith is counsel for Mr. Balaj.

15 Please proceed, Mr. Guy-Smith.

16 MR. GUY-SMITH: Thank you.

17 Cross-examination by Mr. Guy-Smith:

18 Q. Do you recall being asked but a few moments ago concerning the

19 weather conditions at the time that you were naked, as you have told us?

20 A. Yes.

21 Q. You have told us that it had been raining heavily; it was very bad

22 weather. Correct?

23 A. Yes.

24 MR. GUY-SMITH: I'm sorry, I'm -- I'm not connected, Your Honours.

25 Q. And you also have told us that it had rained for a period of some

Page 827

1 three days; is that correct?

2 A. Yes.

3 Q. I understand from the testimony that you've given here, you've

4 indicated that at various times you were ill or sick, and it made it hard

5 for you to remember things. But with regard to the issue of the rain,

6 this is something that you have no doubt about, is it?

7 A. Yes, until the day when they drove us to Aslan Riza Djoci's

8 house. It was raining until that day, and even that day.

9 Q. My specific question to you is: When you were, as you've told us,

10 naked for two days, was it raining continuously and heavily during that

11 period of time?

12 A. Sometimes it was raining heavily, sometimes less heavily, but it

13 was constantly bad weather.

14 Q. So if I understand your answer correctly, for purposes of the

15 issue of the rain and the weather, there's no doubt in your mind that

16 during that period of time, it was very bad weather and there was a great

17 deal of rain; correct?

18 A. Yes, mostly during the night.

19 Q. And it is, in fact, the combination of your nakedness, as you've

20 told us, coupled with the rain, that is the reason that you had a bad

21 fever; correct?

22 A. Yes. I was catching a cold.

23 Q. If I were to tell you that a review of meteorological records for

24 that period of time establishes that there was no rain whatsoever,

25 would your answer be any different?

Page 828

1 MR. DI FAZIO: If Your Honours please, I think "the period of

2 time" should be specified to this witness so she can indicate --

3 stipulated.

4 JUDGE ORIE: What do you consider to be the relevant period of

5 time?

6 MR. GUY-SMITH: The relevant period of time is when she was --

7 when she claims to have been naked for two days.

8 JUDGE ORIE: Could you specify on what is covered by your

9 information, your meteorological information.

10 MR. GUY-SMITH: Yes, I can. That would be the 28th, the 29th, and

11 the 30th of May.

12 JUDGE ORIE: Yes. You may put this specifically to the witness

13 that for these days if -- for these days. Perhaps I could try to put it

14 to the witness.

15 Mr. Guy-Smith, Witness 38, has checked the meteorology for the

16 28th, 29th, and 30th of May, for 1998, I take it.

17 MR. GUY-SMITH: That is correct.

18 JUDGE ORIE: And he found in, well, let's say, the weather reports

19 that there was no rain at that time in that area, and he asks whether

20 you'd still -- whether your testimony still would be that it was raining

21 and raining heavily at the time when the event took place, if you'd know

22 about these weather reports.

23 THE WITNESS: [Interpretation] Yes, Your Honour, it was raining in

24 the mountains heavily; then it would stop for a while; then it would start

25 drizzling; then it started raining heavily again.

Page 829


2 Mr. Guy-Smith.

3 MR. GUY-SMITH: I thank you for your assistance, Your Honour, and

4 with the answer that the witness has given, I have no further questions.

5 JUDGE ORIE: Yes. Are you inclined to tender any weather reports?

6 Or -- I mean, is that what you have on your mind or not?

7 MR. GUY-SMITH: I am inclined to tender some weather reports. I

8 can do it at this point in time or a later point in time or perhaps after

9 discussion with the Prosecution, if we are able to agree to a fact, then

10 we can do it that way.

11 JUDGE ORIE: Of course. There are two issues, and that is the

12 exact time frame and the content of the report.

13 MR. GUY-SMITH: Indeed, so.


15 MR. DI FAZIO: If Your Honours please, if we get a weather report

16 in two days' time or in three or four days' time, how can I re-examine on

17 the matter? I don't know what's in this weather report. I've never seen

18 it.

19 JUDGE ORIE: Mr. Guy-Smith, do you have a copy --

20 MR. DI FAZIO: I have no idea.

21 JUDGE ORIE: -- which sufficiently identifies, I take it, the

22 region that's covered by the report?

23 MR. GUY-SMITH: Yes, I do. That would be ...

24 [Defence counsel confer]

25 JUDGE ORIE: There's no objection against -- I mean, you would

Page 830

1 tender that then from the bar table. Another possibility would be to give

2 it to Mr. Di Fazio and to give him an opportunity to see whether any

3 agreement could be reached on it. If so, then of course the Chamber might

4 be inclined to accept the agreement among the parties.

5 MR. GUY-SMITH: I'm happy to do it either way, Your Honours.

6 JUDGE ORIE: Yes. I think if you do it this way, and then if

7 there's any follow-up that's needed, then the Chamber will hear from you.

8 Witness 38, this is all procedure and I hope it doesn't bother

9 you.

10 Mr. Harvey, your position is still the same?

11 MR. HARVEY: It remains the same, Your Honour.

12 JUDGE ORIE: It remains the same. Then let's see whether the

13 Judges have any questions. Yes.

14 Judge Hoepfel has one or more questions for you.

15 Questioned by the Court:

16 JUDGE HOEPFEL: Witness, I would like to talk with you a little

17 more about this car which was called a jeep, but then jeep is a trademark

18 at the same time and then it was called a Suzuki, and it is a four-wheel

19 drive, you said, or the papers said. Can you describe this car a little

20 more detailed, and can you confirm that it was, or seen to be, the same

21 car which you saw at two different occasions at two different places? Can

22 you sum up a little more and -- once more, and give some details. What

23 did you see?

24 A. Yes, Your Honour, it is the same vehicle that I used to see

25 before, before the war. The same man was in the vehicle as before. It

Page 831

1 was a jeep; there was some lettering on the door or somewhere else,

2 Suzuki. It was black. And I saw the same jeep during that incident.

3 JUDGE HOEPFEL: What do you mean it's the same car, it's one and

4 the same car?

5 A. Because I had seen it before.

6 JUDGE HOEPFEL: Thank you.

7 JUDGE ORIE: I have a few questions for you as well.

8 You described the -- what happened when you were at the mill. You

9 described that your father had to undress but could put on his clothes

10 again after that; that you were stripped naked and that you were, at least

11 for some time, not allowed to put on your clothes again. Other persons in

12 the group you were in, that is, your family members, among them other

13 women as well, was one of them -- did any of them also have to take their

14 clothes off or were you the only one, together with your father, who had

15 to take your clothes off?

16 A. My sister-in-law and my step-mother were the only two other women,

17 although there was another girl as well. I'm sorry. But I was the only

18 one, together with my father, who was made to strip. He was allowed to

19 put his clothes back on a little later but I wasn't.

20 JUDGE ORIE: Yes. So none of the other women had to take her

21 clothes off; is that correctly understood?

22 A. That's correct, Your Honour.

23 JUDGE ORIE: Yes. I have a question of a totally different

24 nature.

25 You referred several times to KLA members, KLA. How would you

Page 832

1 identify someone as belonging to the KLA?

2 A. Well, based on the fact that they were armed, although at that

3 time some of them were in uniform, some in civilian clothes, in my opinion

4 they couldn't have been anything else; they couldn't have been members of

5 any other army but the KLA.

6 JUDGE ORIE: Let's go through it step by step. You say if someone

7 was armed. Let's just assume no uniform but just carrying a weapon, would

8 you consider that person to be a KLA member for that fact alone?

9 A. Yes.

10 JUDGE ORIE: As far as uniforms were concerned, how many armed

11 men -- were they only men or were there also women armed?

12 A. I didn't see women, I saw men.

13 JUDGE ORIE: How many of these armed men were wearing uniforms, as

14 opposed to being in civilian clothes?

15 A. I can't remember. I don't know the exact number. I didn't see

16 uniforms that often at the time. There was a very small number of men in

17 uniform at the time. I can't tell you the exact number.

18 JUDGE ORIE: And would the same be true for armed men as well?

19 Would you see most of the men armed not to be in uniform?

20 A. No. No.

21 JUDGE ORIE: If you say no, do you mean that not most of them were

22 without uniforms, most of the armed men, or are you saying that most of

23 them wearing uniforms?

24 A. No, most of them did not have uniforms.

25 JUDGE ORIE: Even those who were armed?

Page 833

1 A. Right.

2 JUDGE ORIE: Now, if they were not wearing uniforms, what -- apart

3 from carrying a weapon, was there any other feature that would assist you

4 in concluding that these were KLA men or KLA members?

5 A. I didn't know the rules. Maybe there were other possibilities. I

6 don't know what the rules were.

7 JUDGE ORIE: I'm not talking about rules. But was there anything

8 else, apart from that they were carrying a weapon, that you would say, Oh,

9 that's a KLA person?

10 A. No, I couldn't make any conclusions about that. I don't know.

11 JUDGE ORIE: So that means, to say it in simple words, that if

12 they would put away their weapons where they were not wearing uniforms,

13 that if you couldn't see the weapon anymore that you could not identify

14 them as KLA members? Is that a correct understanding?

15 A. Yes.

16 JUDGE ORIE: Yes. Now, those who were wearing uniforms, how could

17 you -- were these specific uniforms for KLA? Were they different from any

18 other uniforms you knew about?

19 A. They had similar uniforms to those of the Yugoslav People's Army,

20 except that they had KLA insignia. They were similar in the sense that

21 they were camouflage uniforms.

22 JUDGE ORIE: And when you're talking about insignia, is that --

23 you identified during your testimony one emblem of the KLA. Were there

24 more, or was that the only one, or ...?

25 A. Maybe they were different shapes to those patches, but I think

Page 834

1 that KLA were written on all of them.

2 JUDGE ORIE: Yes. And were these patches ever worn by someone who

3 was not wearing a uniform?

4 A. I didn't see those patches when I was up there. I mean among

5 civilians, I didn't see them.

6 JUDGE ORIE: Yes, you say "civilians," but I was talking about

7 men, armed, not in uniform, whether they -- whether you ever saw any of

8 these patches on their clothing or their outfits.

9 A. No. No. At that time, I didn't see any patches on them.

10 JUDGE ORIE: Thank you for these answers.

11 Mr. Di Fazio, is there any need to re-examine the witness?

12 MR. DI FAZIO: Just one or two matters, if Your Honours please.


14 MR. DI FAZIO: I'll be very brief.

15 Re-examination by Mr. Di Fazio:

16 Q. Just following on immediately from His Honour, the President's,

17 questions, about men in uniforms and carrying weapons, when you were --

18 when you saw the convoy moving along, did any of the men in the convoy

19 have weapons?

20 A. Yes, men in civilian clothing.

21 Q. All right. Thank you. I just want to turn to an answer you gave

22 to Mr. Emmerson earlier this afternoon. (redacted)

23 (redacted)

24 (redacted)

25 A. I think it's been five years and three months.

Page 835

1 Q. So she resides there at the -- she resided there for five years

2 and three months, and do I understand your evidence to be that she

3 continues to reside there?

4 A. Yes.

5 (redacted)

6 (redacted)

7 A. No.

8 Q. Thank you very much.

9 MR. DI FAZIO: That's all I have in re-examination, if Your

10 Honours please.

11 JUDGE ORIE: Yes. I'd like that -- to have that clarified before

12 I give an opportunity.

13 You earlier testified that you would see your sister-in-law once a

14 month.

15 THE WITNESS: [Interpretation] Your Honours, that was in Kosovo. I

16 understood the question to mean the period before she was exiled from the

17 village where she used to live.

18 JUDGE ORIE: Yes. Let me check that, because it's my

19 recollection, but I could look that up, that you were asked about where

20 you resided now, whether she resided in that same country; that you then

21 said, But we are at quite a distance; and that then the question was put

22 to you how often you would see her. So that left the impression that it

23 was in that country that you would see her once a month. Now you're

24 saying that you saw her once a month before you left Kosovo.

25 (redacted)

Page 836

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 JUDGE ORIE: Therefore, it's that we are trying to find out

8 precisely what you said.

9 THE WITNESS: [Interpretation] I apologise, really.

10 JUDGE ORIE: No problem.

11 Mr. Emmerson, is there any need for further questions?

12 Mr. Guy-Smith?

13 Mr. Harvey?

14 JUDGE ORIE: Then, Witness 38, this concludes your testimony. We

15 have asked many questions to you; you've answered the questions of the

16 parties, of the Bench. We'd like to thank you for coming to The Hague and

17 giving testimony before this court. You'll be escorted out of the

18 courtroom by Madam Usher.

19 THE WITNESS: [Interpretation] Thank you, too, for hearing me.

20 Thank you.

21 [The witness withdrew]

22 JUDGE ORIE: I would first like to -- yes, Mr. Emmerson.

23 MR. EMMERSON: Before we proceed to the next witness, I left a

24 message earlier on simply to say that there are rather a number of matters

25 that need to be resolved for next week, and I didn't want the situation to

Page 837

1 arise in which we broke at ten to 7.00 and found that there was

2 insufficient time to deal with them.


4 MR. EMMERSON: So I suggested perhaps this would be the right

5 moment. But in addition to that, I think we need to revisit the question

6 that I agreed to leave over during my cross-examination arising from

7 Mr. Di Fazio's proofing notes and the question that I put to the witness.

8 Can I remind Your Honours, unless -- if this is a convenient

9 moment.

10 JUDGE ORIE: Yes, I think it's a convenient moment. We have a few

11 procedural matters, and perhaps we'll deal with them at this moment before

12 the Prosecution calls its next witness. But if you would not mind,

13 Mr. Emmerson, that I first ask another question which is also still

14 pending; that is, in what way will the Chamber receive a response to the

15 last request for protective measures filed by the Prosecution?

16 MR. EMMERSON: I think the response will be in writing and I think

17 Mr. Guy-Smith will outline his position, which we will adopt, since these

18 witnesses primarily are witnesses that he'll be cross-examining.

19 JUDGE ORIE: And when could we expect?

20 MR. GUY-SMITH: I'm sorry, Your Honours, I was --

21 JUDGE ORIE: Yes. Well, Mr. Guy-Smith, you're tasked by

22 Mr. Emmerson with providing a written response to the motion for

23 protective measures. We'd like to know when you intend to file that.

24 MR. GUY-SMITH: It will be filed by Monday.

25 JUDGE ORIE: By Monday.

Page 838

1 And, Mr. Re, I don't think that that causes any problems as far

2 as, I don't know, arrival. I should have to look up exactly which

3 witnesses these are and whether they're scheduled for anywhere where we

4 could expect for them to arrive already before Monday in The Hague.

5 MR. RE: Can I be reminded of which -- the witness numbers. It

6 would certainly assist me. A lot of filings here --

7 JUDGE ORIE: Wasn't it 9 and 15, or am I mistaken?

8 MR. EMMERSON: I think it's 4 and 19.

9 JUDGE ORIE: 4 and 19, yes.

10 [Prosecution counsel confer]

11 MR. RE: No problem at all.

12 JUDGE ORIE: Causes no problems.

13 Okay. Then, Mr. Guy-Smith, we're looking forward to your response

14 to be filed Monday.

15 MR. GUY-SMITH: I think also you'd been searching for something in

16 the transcript, Your Honour. I'm not sure with regard to whether Witness

17 38 and the sister-in-law lived in the same country, and whether -- when

18 they saw each other.

19 JUDGE ORIE: Yes. Since the witness has left the courtroom, I

20 don't think whether there's -- whether there's any point.

21 MR. GUY-SMITH: We just found it for you, Your Honour.

22 JUDGE ORIE: No, no. I just search and then -- the name of the

23 country and then you get it very quickly.

24 MR. GUY-SMITH: Before --


Page 839

1 MR. GUY-SMITH: I don't know where we're turning to next, but two

2 issues did arise during our prior session; one was the issue of proofing

3 and the other was the issue of audio recordings, where you specifically

4 asked about audio recordings.

5 JUDGE ORIE: Yes, whether they existed or not. I take it,

6 Mr. Emmerson, that that's the same issue you'd like to address, or at

7 least one of the issues?

8 MR. EMMERSON: Yes, I think it might be helpful if I directed

9 Your Honours' attention to the transcript at page 14, line 24.

10 JUDGE HOEPFEL: Of today?

11 MR. EMMERSON: Of today, yes, this afternoon.


13 MR. EMMERSON: Where arising out of the questions that have been

14 asked on the proofing notes, and in particular the sentence which reads --

15 which states that until that time, in effect, there had been no

16 ill-treatment. I sought clarification from Witness 38 by asking her the

17 direct question: "Did you or did you not tell Mr. Di Fazio on Tuesday

18 that, by the time the jeep arrived, you had already been stripped naked

19 and assaulted? Did you tell him that or did you not?" And she

20 replied: "I think I did, yes."

21 Now, we obviously need to have Mr. Di Fazio to respond that and to

22 say whether that was said to him or it was not. Now, I'm anxious as to

23 what the implications of that are, but there can be no question, in our

24 submission, but that he must be called upon to state whether that was, in

25 fact, said to him or not.

Page 840

1 JUDGE ORIE: We have two questions, the first one being that

2 Mr. Di Fazio can express himself on whether he thinks that this is what

3 could reasonably be expected from him, and only if that question is

4 answered in the positive, then of course the next question would be

5 whether or not the witness told him this during proofing sessions --

6 during the proofing session.

7 Mr. Di Fazio, so I split up the questions clearly in two, the

8 first one of a procedural nature.

9 Mr. Re, if you would like to answer that question, no problem.

10 MR. RE: It's probably better that I answer this.


12 MR. RE: Mr. Di Fazio won't be giving evidence in this court as to

13 what was said. There was an interpreter there who interpreted whatever

14 the witness said to Mr. Di Fazio. If ever the need arose to clarify what

15 was said by the witness and then what was translated to Mr. Di Fazio, the

16 interpreter would be the appropriate person to provide the necessary

17 declaration or affidavit of what was said.

18 JUDGE ORIE: Yes, with the advantage that the interpreter can not

19 only provide an answer to the question what the witness told to the

20 interpreter, but also to what the interpreter told to Mr. Di Fazio.

21 MR. RE: Naturally.

22 MR. EMMERSON: I'm terribly sorry, but if this matter is to be

23 properly investigated, there is the possibility that the interpreter's

24 recollection will differ from Mr. Di Fazio's, who was writing it down.


Page 841

1 MR. EMMERSON: And so I'm afraid that doesn't represent quite such

2 a neat solution to the issue of the position that Mr. Di Fazio is in.

3 JUDGE ORIE: Yes. You're one step in front of --

4 MR. EMMERSON: I'm simply --

5 JUDGE ORIE: You're saying "if" there's a difference. We do not

6 know yet. The Chamber will consider it all, I think, and we might need a

7 bit more time for that, to see -- we'd like to think it over.


9 JUDGE ORIE: If you'd -- if you would want to make further

10 submissions on the matter, then perhaps, very briefly, in ten or twelve

11 lines, if you just say there has to be an investigation, that's all --

12 MR. EMMERSON: All I was going to say is, we won't know if there

13 is a difference of recollection if the Prosecution takes the position that

14 Mr. Di Fazio is not called upon to respond.

15 JUDGE ORIE: Yes. We'll consider the matter. It's not at this

16 moment an urgent moment, I think, because the witness has been excused.

17 Several things go through my mind. I'd like to check whether the same

18 things go through the minds of my colleagues.

19 Mr. Guy-Smith.

20 MR. GUY-SMITH: I would like to add what I think is a systemic

21 concern.

22 I wrote a letter to the Prosecutor on the 19th of January

23 specifically dealing with the issue of proofing. I will be more than

24 happy to supply that letter to the Chamber at a later point today, but I

25 will read you two paragraphs of that letter so you can see that the

Page 842

1 precise problem that I forecast has now come up.

2 "Finally, I suggest that to ensure a full, complete, and accurate

3 record of the 'proofing sessions' --"

4 JUDGE ORIE: May I interrupt you? Is that a letter from late

5 January that has just been filed.

6 MR. GUY-SMITH: It's a letter of January 19th in which we

7 suggested -- we suggested a full and complete record, either audio, video,

8 or, if nothing else, stenographic recordings.

9 JUDGE ORIE: I don't think we have a comprehensive response to

10 that letter from the Prosecution.

11 Mr. Re, the Chamber will consider whether it will invite you to

12 give a response to that, perhaps also in light of the experience we have

13 now. But before the Chamber invites you, I will try to find out whether

14 there is a sufficient majority in the Chamber to invite you. Yes?

15 MR. RE: We did respond to the letter. If there's any question

16 about that, we responded to the letter. I doubt it was copied to the

17 Trial Chamber. I wouldn't see any reason to copy it to the Trial Chamber.

18 There's a lot of letters that go between Defence and Prosecution that

19 aren't copied to you.

20 JUDGE ORIE: Yes. But this one was specifically brought to the

21 attention of the Trial Chamber. If there's a response, I think it would

22 be good for the Trial Chamber to know that response. We will then first

23 read it and see whether any further action is needed. Yes? Okay.

24 Yes.

25 MR. GUY-SMITH: If I might. You had also asked another question

Page 843

1 which was a question with regard to the issue of audio recordings.


3 MR. GUY-SMITH: I believe the Chamber probably has another letter

4 that I wrote. There were two letters, I wrote, I think, in that regard.

5 One was on the 10th of letter; the other was on the 18th. We have

6 received a response from the Prosecution in that regard indicating all of

7 the audio recordings that exist and all of the video recordings that

8 exist. I'm more than happy to supply a copy of that letter to the Chamber

9 so that when the issue comes up again, which I'm sure that it will since,

10 for example, the video recording that we discussed -- that was discussed

11 today was not contained in that letter, the Chamber will be aware of at

12 least what information we have at this time.

13 JUDGE ORIE: Yes. Well, the Chamber might not be that interested

14 in reviewing long lists of what is recorded.

15 MR. GUY-SMITH: I'm sure the --

16 JUDGE ORIE: Yes, okay. Sure. The Chamber would like, if any

17 issue arises which might be resolved by recording, to be immediately

18 informed about whether a recording exists, yes or no, because if no

19 recording exists, we don't have to even try to seek a solution in that

20 direction; if it does exist, then we could consider that. Yes.

21 Anything else?

22 [Trial Chamber confers]

23 [Trial Chamber and legal officer confer]

24 JUDGE ORIE: The only remaining matter is if there's any update on

25 the order of calling witnesses next week. Earlier we heard about

Page 844

1 problems. What could we reasonably expect and what still bothers the

2 Defence as far as these witnesses are concerned in terms of disclosure?

3 MR. EMMERSON: Your Honour, there's one witness in particular, and

4 I've been mentioning him from time to time over the last few days.

5 There's no difficulty, I think, with mentioning his name in public

6 session.

7 JUDGE ORIE: Let's always keep on the safe side. I mean, it could

8 be -- if the Prosecution says under no circumstances there are protective

9 measures, then please go ahead; if not, then please refer to him on the

10 list, and I've got all the lists available here.

11 MR. EMMERSON: He is.

12 JUDGE ORIE: Under filed list, chronological order, if you

13 could ...

14 MR. EMMERSON: I think on the filed list, so long as Your Honour

15 and I are looking at the same version, he should be Witness 8, witness

16 number 82.

17 JUDGE ORIE: Witness 8 is on my list; 82, yes.

18 MR. EMMERSON: So this witness is a former employee of the Serbian

19 State Security Service, and he's made two witness statements in this case;

20 one in May 2003 and one in April 2006. In addition, the Defence were

21 provided earlier this week with some proofing notes dated Thursday, the

22 1st of March, a reference of videolink proofing session.

23 Now, just to sketch in the background very briefly. He purports

24 to give general evidence, drawing conclusions about the operation of the

25 KLA in the Dukagjin region over a considerable period of time. None of

Page 845

1 his statements are sourced within the witness statements, so there is no

2 indication of the particular source that he is drawing on. He simply

3 gives a general indication that the State Security Service had available

4 to it a combination of intercept material, human intelligence reports,

5 that type of general information. There was very little in the form -- in

6 the form of clarification of the issues that Your Honours identified as

7 issues that would require to be explored in cross-examination when

8 secondary testimony, which is what this is, is -- it comes to be given.

9 So the Defence is in the position, to start with, that we can't tell from

10 the witness statement what the sources of the material or the statements

11 might be. That's the first point.

12 You may remember that earlier, I think perhaps last Thursday at

13 the Pre-Trial Conference, I mentioned the fact that Mr. Re had told me

14 that from Belgrade a batch of material had just been received, and that we

15 understood that it might be particularly relevant to one of the early

16 witnesses and that Mr. Re identified Witness 8 as the witness to whom that

17 material was potentially relevant.

18 In his first witness -- I'm sorry, in his second witness

19 statement, he is effectively asked for source material and says that the

20 source material could be provided by the Serbian State Security Service.

21 He also refers, I think in his first statement, to some 64 files of

22 material which have been provided to the Prosecution on which he could

23 comment, if asked. It's not clearly whether that 64 volumes of material

24 or the material that was supposed to be in the Belgrade selection contains

25 material that could properly be his source material.

Page 846

1 We were told two days ago that the proofing note we have is

2 incomplete in the sense that there was to be a further proofing session.

3 I don't know whether the position has changed in that regard. But this

4 proofing note concludes - and this is a less significant problem than the

5 ones I've averted to - but just before I drew the inference together, this

6 statement concludes with a passage that says, "Mr. --" the witness was

7 given and read over a number of VJ reports and was asked in general

8 whether he could comment on them. He said he was familiar with the

9 contents of the reports and could comment on them. There's then listed

10 eight reports and their ERN numbers. There are no comments, so we don't

11 know what comments he might be proposing to make.

12 Now, I asked Mr. Re some time ago and he indicated that he would

13 kindly oblige, just to identify, first of all, what it is from this

14 witness it's proposed to elicit so that we can begin to look at what the

15 source material might be, so that we can prepare cross-examination on the

16 lines that Your Honour has indicated ought to be pursued; and secondly, to

17 identify what, if any, exhibits the witness was proposing to produce,

18 whether they came from either of those two batches of material or not.

19 And it had been my intention to suggest that we proceed in stages. That

20 the Prosecution do that, identify the exhibits they might wish the witness

21 to produce, and that the Defence can then consider what further disclosure

22 would be required, because one of the problems is that if either of those

23 two batches of material contain source documents that the Defence could

24 properly use to challenge the factual expressions that the witness

25 proposes to give, then we need to have an opportunity to see the material,

Page 847

1 to examine it, and to prepare cross-examination. But at the moment, as

2 matters currently stand, this witness is document-light. We have had no

3 disclosure of source material at all other than a proofing note which

4 lists eight VJ reports, which are obviously not his concern because he's

5 State Security, not VJ, and on which we've been told he can comment but

6 not told what his comments are.

7 Now, my suggestion to Mr. Re has been that he's not ready to call

8 this witness, but I don't, as I've emphasised from the outset, want to be

9 put in the position again and again where I have to be making applications

10 for adjournments because the Prosecution hasn't put us in a position where

11 the witness can properly and fairly be examined.

12 So that is the situation that we're in. As far as the other

13 witnesses are concerned, we're in the position to deal with any witness

14 that the Prosecution has so far indicated it is able to call next week,

15 other than this one.

16 JUDGE ORIE: Mr. Re, the issue is that Defence is uncertain about

17 what you want to elicit from these witnesses; that it is uncertain about

18 what additional material it could expect; that where eight reports have

19 been identified as reports on which the witness will comment, that they do

20 not know what the comment is. Could you help us out or could you help the

21 Defence out?

22 MR. RE: We are, as I speak here in court, speaking to that

23 witness by videolink to finish, to finalise, the proofing of him. I would

24 anticipate that that would be finished within the next couple of hours and

25 we will have the information to the Defence later tonight or tomorrow

Page 848

1 morning.

2 JUDGE ORIE: And would, most likely, these proofing notes give an

3 answer to at least some or -- if not all, of the questions raised by

4 Mr. Emmerson, I mean about what you're seeking to elicit from him, what

5 material is there to be commented on, what his comments are on this

6 material?

7 MR. RE: Well, if the proofing's finished, it certainly will,

8 because the documents we intend to show to the witness we would have shown

9 to him by videolink as I speak now.


11 MR. RE: There are six documents referred to in the proofing notes

12 furnished earlier this week. They're VJ documents; they're all on the

13 exhibit list. Our intention at the moment, as far as I know, is only to

14 show the witness documents which are on the exhibit list, and only ask him

15 to comment on documents which are on the exhibit list.

16 JUDGE ORIE: How many would that, approximately, be? Because I

17 do understand that he was considered to be, a new word for me, a

18 "document-light" witness. I mean, would the six or eight, difference of

19 two only, would that expound to 60 or to 22 or -- I mean, could you give

20 us an expression -- an impression on how document-light or how

21 document-heavy you would finally be?

22 MR. RE: I would be guessing if I gave you a number. My Lotus

23 Notes just crashed when I was trying to find it in a document I had. If I

24 said around 30, it's a guess.

25 Now, Mr. Emmerson referred to some 64 binders. Yes, the witness

Page 849

1 did refer to the fact that 64 binders of material might well have been

2 provided to the OTP by Serbian intelligence at one point, but --

3 JUDGE ORIE: You consider that not relevant material for this

4 witness. Is that it?

5 MR. RE: Well, absolutely. Of course we're not going to ask him

6 for 64 binders of material to be produced, or even look at them, in court.

7 I think Mr. Emmerson's concern is he wants to see the 64 binders which are

8 mentioned in the -- in the letter. Now, clearly there is some -- the

9 Prosecution's disclosure obligations go only so far, and so far as I'm

10 concerned, we've complied with that disclosure.

11 JUDGE ORIE: If you don't use them, of course, this disclosure

12 regime for documents to be tendered and produced into evidence, of course,

13 is different from other documents.

14 But, Mr. Emmerson.

15 MR. EMMERSON: Your Honour, that's some help in the sense that

16 Mr. Re has indicated that this witness will produce and comment on 30

17 documents. Now, my expectation is that these will be documents of some

18 technical character.

19 MR. RE: I didn't say 30, I said I would be guessing if I said

20 30.

21 JUDGE ORIE: Yes, let's -- gentlemen, gentlemen. If a reference

22 is made to 30, everyone has understood that Mr. Re did not say anything

23 as -- not 29 or 31. Let's try to understand each other in a way --

24 MR. EMMERSON: But not six or eight. And they will be documents

25 of some technical character because of the nature of the witness's

Page 850

1 evidence.

2 So the first question is, and I'm not purporting to answer it at

3 this present stage but I am purporting, and have for some time been trying

4 to give early-warning signals. The first problem is, if you have 30

5 documents of a technical character in terms of military and intelligence

6 material, that material will need to be assimilated, assessed, and

7 compared with other material before it can properly be the subject of

8 cross-examination. So that's the first problem, however many documents it

9 is.

10 We also have had a history, as you know, of having material

11 that -- on the Prosecution exhibit list for which no translations have

12 been provided. But, again, until we know what these documents are.

13 But the biggest question in this, if I may say so, is what I

14 didn't hear from Mr. Re is that this witness' testimony will be confined

15 to giving and commenting on those documents, because in his witness

16 statements, the witness makes statements about what their position was.

17 Now for the Defence to be able to explore the questions that Your Honour

18 has identified, particularly the source of the statement and the

19 reliability of the source, we need to know what the source of the

20 statements that they are proposing to elicit from this witness are and

21 have the material.

22 JUDGE ORIE: Yes. I suggest we do the following. You've

23 expressed your concerns. I'm afraid we can't resolve them right away.

24 You'll receive within a couple of hours the new -- the new proofing notes

25 which at least give an answer to, if not all, then at least some questions

Page 851

1 put to you. Then I also noticed that from now on, just looking at this

2 order, but I don't have the exact order in my mind, that at least a couple

3 of other witnesses will first be called before this witness will be

4 called, or is he the first one for next week?

5 MR. RE: No, he's the first one for Monday. The difficulty we

6 have is that the second one has now -- who was our anticipated second one,

7 we've just filed another application before the Trial Chamber.

8 JUDGE ORIE: Yes. At the same time -- well, if that's for Monday.

9 We can't speculate on what you'll find in your letter-box this evening.

10 MR. EMMERSON: I just didn't want to turn up on Monday and make an

11 application that --

12 JUDGE ORIE: That's fine. If there's -- I would like the parties

13 to try to resolve the matters once they have received -- once they have

14 received the newest proofing notes and what exhibits and what comments, et

15 cetera; then to see to what extent they can resolve the issues. And

16 therefore, Mr. Re, if you provide the material late Friday evening, I'm

17 afraid that I have to condemn you to be available also during the weekend,

18 unless very exceptional circumstances would prevent you from being

19 addressed. I mean, Monday is Monday. I mean, that's only the weekend in

20 between. And in return, if this would create major problems, we'll put a

21 system in place that the Chamber can be approached during the weekend as

22 well to -- at least to report to the Chamber what the problems are.

23 MR. EMMERSON: I should make it clear. I wouldn't have been

24 troubling you with this issue at all had it not been for the fact that the

25 Prosecution were proposing to call the witness on Monday. Had it been

Page 852

1 later in the week, I wouldn't have been bothering you with this at all.

2 JUDGE ORIE: Okay. So the parties will informed -- first of all,

3 I invite you to try to resolve any matters, but, of course, we're now more

4 or less speculating because you do not know what to expect in the proofing

5 notes; we do not know how much material it is; we do not know how

6 technical the material is. We just don't know. So first try to find out

7 what we're really talking about; then try to resolve it. If there's any

8 problem; if not, then the Chamber might be in a position to assist you, if

9 it were only from a distance.

10 Mr. Guy-Smith.

11 MR. GUY-SMITH: Two brief things. One is not only do we not know

12 the nature of the information contained in the documents, but we obviously

13 do not know the length of the documents submitted.

14 JUDGE ORIE: Of course.

15 MR. GUY-SMITH: And the second thing is, and I guess I'm starting

16 to hear myself in my own head a fair amount, which is I heard the words

17 "This particular individual is being proofed by videolink," and I would

18 request that the Chamber order - and he is being proofed as we speak right

19 now - that the Chamber order that the videolink be recorded so in the

20 event there are any difficulties in the future, there is something that

21 can be done in that regard. Obviously, it would stay within the

22 possession of the Prosecution at this time. So we don't run into the

23 problem and we have a safeguard for the problem we ran into today, it

24 seems to be a very easy solution to something that otherwise could

25 potentially come up again.

Page 853

1 JUDGE ORIE: Yes. I do understand. Of course, you would not ever

2 expect this Chamber to give any order on something that is technically not

3 possible, and I just do not know at this moment.

4 So my first question to Mr. Re would be: Is there any technical

5 possibility of recording such a videolink, I mean technical possibility to

6 be put in place quickly? I mean, are you aware of that?

7 MR. RE: Your Honour, I'd have to make relevant inquiries of the

8 technical people to find out if that's possible.

9 JUDGE ORIE: Yes. Let's do that for the future. I also

10 understand at the same time, that the proofing notes -- proofing will

11 be finalised in a couple of hours. So, therefore, to say now the last two

12 hours we have to buy new equipment, I mean, it's a matter which certainly

13 should be on the agenda for the future. A general question, that is, to

14 what extent will the Prosecution be required to record and provide

15 recordings, and what kind of recordings, et cetera, that is a question

16 which we'll have to deal with rather quickly, but ...

17 [Trial Chamber confers]

18 JUDGE ORIE: The Chamber does not issue an order at this moment

19 for the remainder of this -- of this proofing, through videolink, of this

20 witness, but it is on our agenda.

21 If that's everything for the time being, then we'd like to invite

22 the Prosecution to call its next witness. But before doing so, I'd like

23 to go into private session.

24 Mr. Harvey, I've forgotten you.

25 [Trial Chamber confers]

Page 854

1 JUDGE ORIE: Mr. Harvey.

2 MR. HARVEY: Your Honour, merely this: If the Court would be so

3 kind as to excuse me from the remainder of this session, Mr. Troop will,

4 of course, remain here and my client consents to my absence.

5 JUDGE ORIE: Yes, thank you for informing us, Mr. Harvey.

6 Before the next witness will be called, I'd like to go -- I have

7 two matters. I'd like to deal with the exhibits of the previous witness.

8 Both parties have presented documents that were marked for identification.

9 Does the -- any of the Defence object to any of the documents tendered by

10 the Prosecution? And the other way around.

11 MR. DI FAZIO: Well, yes, I don't think the meteorological report

12 should be admitted.

13 JUDGE ORIE: No, it's not tendered. The solution found was that

14 Mr. Guy-Smith will speak with you, and only after that but then from the

15 bar table, as I understand, tender the document -- if there's any need --

16 MR. DI FAZIO: Fine.


18 MR. DI FAZIO: Very well, Your Honour. In the light of that, of

19 course, I'll speak to my learned colleague and we'll, I'm sure, settle the

20 matter.


22 Mr. Emmerson.

23 MR. EMMERSON: Your Honour is asking, obviously, about the

24 exhibits tendered during the course of this witness.

25 JUDGE ORIE: Yes, not anything else.

Page 855

1 MR. EMMERSON: The first witness, we have not dealt finally about

2 those, but --

3 JUDGE ORIE: We are waiting for a final submission by the

4 Prosecution of the documents in the right chronological order, and we'll

5 refrain from any decision until that time.

6 MR. EMMERSON: So, so far as this witness is concerned, there's no

7 issue.

8 JUDGE ORIE: Yes, okay.

9 Then, Madam Registrar, perhaps you could tell us what numbers - I

10 could look it up in the e-court as well - but that starts from P -- is it,

11 7 or 8? The documents marked for identification and tendered during the

12 testimony of this witness.

13 [Trial Chamber and registrar confer].

14 JUDGE ORIE: Yes. The exhibits marked for identification -- I'm

15 sorry.

16 [Trial Chamber and registrar confer]

17 JUDGE ORIE: The exhibits marked for identification until now, P7,

18 P8, P9, and D2, D3, and D4 are admitted into evidence.

19 MR. EMMERSON: I think, unless it's been corrected ...

20 JUDGE ORIE: All of them under seal.

21 But, Mr. Emmerson --

22 [Trial Chamber and registrar confer]

23 JUDGE ORIE: I didn't check myself. I should correct myself and

24 add D1 to it.

25 MR. EMMERSON: Yes, there are two other problems, apparently, on

Page 856

1 the system.


3 MR. EMMERSON: First of all, D2 is marked P2, so that needs to be

4 corrected.


6 MR. EMMERSON: And secondly, D3 is exhibited as the translation,

7 and I think the practice is that the English translation should be

8 exhibited -- the English original should be exhibited but the translation

9 linked to it.


11 MR. EMMERSON: Otherwise, those are the four.

12 JUDGE ORIE: Yes. Thank you for this adjustment. But they are

13 admitted into evidence, with the correction just stated.

14 Then, Mr. Re, I'm wondering what's the best way to proceed. We

15 need another break. Perhaps it would be better that we have the break now

16 and then you can call the witness. Isn't that the best solution?

17 We'll then have a break of 20 minutes. We'll resume at five

18 minutes to 6.00.

19 --- Recess taken at 5.35 p.m.

20 --- On resuming at 5.57 p.m.

21 JUDGE ORIE: Mr. Emmerson, you're on your feet.

22 MR. EMMERSON: Just a very brief update. We've had some

23 discussion between the parties, and -- and one witness who is due to be

24 called on Tuesday at the moment, who is witness number 5, is due to travel

25 to The Hague on Monday, arriving at 11.30. He is a witness --

Page 857

1 JUDGE ORIE: At night or in the morning?

2 MR. EMMERSON: In the morning. He's a witness of fact. We could

3 very easily be ready to deal with him in the afternoon. And so if the

4 problems which I foresee in relation to the witness we were discussing

5 before the break materialise, that is a witness who, in theory, could be

6 substituted.

7 Now, I think Mr. Re has indicated that until he does arrive, it

8 won't be clear whether he needs a rest between arrival and testifying, and

9 I absolutely understand that, although of course one possibility might be

10 to sit just a little later --

11 JUDGE ORIE: But that seems to be an escape for the situation, at

12 least to use our time --

13 MR. EMMERSON: Exactly.

14 JUDGE ORIE: Okay. Let's -- we'd like to be informed what the

15 final solution will be.

16 Mr. Re.

17 MR. RE: We do, of course, understand the point being made by the

18 Defence. I have no objection, in principle, to calling that witness

19 before -- before the first one.

20 JUDGE ORIE: Okay.

21 MR. RE: But it may mean that it's a bit difficult to bring him

22 straight from the plane and put him in the witness box.

23 JUDGE ORIE: Yes, that's understood. We only say that's a

24 possible escape if the other problem would materialise. That's good to

25 know.

Page 858

1 I'd like to go into private session for a second.

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 [Open session]

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

17 JUDGE ORIE: Thank you, Madam Registrar.

18 Mr. Re, are you ready to call your next witness?

19 MR. RE: I am. It will be Witness 58.

20 JUDGE ORIE: Yes. Yes -- no, I made a mistake, as a matter of

21 fact. We have to go back into private session for another moment.

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

Page 859











11 Pages 859-863 redacted. Private session.















Page 864

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

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

12 JUDGE ORIE: Thank you, Madam Registrar.

13 Is there -- for face distortion, we always have to be careful that

14 the entrance of the witness is not shown on the screen, and at a later

15 stage, we'll, in public, deliver the decision granting the protective

16 measures because that has to be done in public and cannot be done in

17 private session only.

18 Are you ready to call your next witness?

19 MR. RE: Yes.

20 JUDGE ORIE: Mr. Re, I do understand that that is a witness

21 testifying under pseudonym, that is, Witness 58.

22 MR. RE: I will obviously briefly need to go into private session

23 at the beginning of her testimony.

24 JUDGE ORIE: Yes. Not yet. First, I think. I take it that

25 you'll first deal with the pseudonym sheet and then go into private

Page 865

1 session for her personal background.

2 MR. RE: I don't have a pseudonym sheet as such. There's no point

3 in me showing her a pseudonym sheet. I can prepare one afterwards for the

4 Court.

5 [Trial Chamber and registrar confer]

6 JUDGE ORIE: If you make a piece of paper with the name and

7 without any further explanation, just the date of birth on it, then --

8 because we cannot accept that there's a witness testifying in this court

9 who has not confirmed her identity.

10 MR. RE: Is there any reason why I can't ask her in private

11 session what her name is and put that in private session on the record?

12 JUDGE ORIE: That's another way of doing it.

13 [Trial Chamber confers]


15 [The witness entered court]

16 JUDGE ORIE: Good afternoon. Good afternoon. Witness 58, I'm

17 talking -- I'm talking to you. Witness 58, we'll not call you by your

18 name. We have decided that, for various reasons, it's better that we'll

19 call you Witness 58.

20 THE WITNESS: [Interpretation] Thank you.

21 JUDGE ORIE: Before you give evidence in this court, the Rules of

22 Procedure and Evidence require you to make a solemn declaration that

23 you'll speak the truth, the whole truth, and nothing but the truth. The

24 text is now handed out to you by Madam Usher. Would you please -- may I

25 invite you to make that declaration.

Page 866

1 THE WITNESS: [Interpretation] Thank you, Your Honour.

2 JUDGE ORIE: Yes. My question, first of all, is: Can you read?

3 THE WITNESS: [Interpretation] No.

4 JUDGE ORIE: Then I would like to seek the assistance of a ...

5 [Trial Chamber and registrar confer]

6 JUDGE ORIE: Here we need the assistance of the translators. If

7 you would -- I will give the solemn declaration in English. Would you

8 please translate that to the witness, and then we'll ask the witness to

9 repeat that. So I will first say it in English --

10 THE WITNESS: [Interpretation] Yes, thank you.

11 JUDGE ORIE: -- you'll hear it in your earphones in your language,

12 and then I'd like you to repeat that solemn declaration.

13 The declaration is: I solemnly declare that I will speak the

14 truth, the whole truth, and nothing but the truth. Would you please say

15 this in your own language.

16 THE WITNESS: [Interpretation] Okay. I solemnly declare that I

17 will speak the truth, the whole truth, and nothing but the truth.


19 [Witness answered through interpreter]

20 JUDGE ORIE: Witness 58, you'll first be examined by Mr. Re, who

21 is counsel for the Prosecution.

22 Mr. Re, please proceed.

23 MR. RE: Can we just go into private session for one moment,

24 please.

25 [Private session]

Page 867











11 Page 867 redacted. Private session.















Page 868

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: Please proceed, Mr. Re.

22 MR. RE:

23 Q. Witness, where were you living in 1998?

24 A. Myself? You mean when I was a girl or when I was married?

25 Q. In 1998, that's when the fighting was.

Page 869

1 A. I was in Ponoshevc.

2 Q. What's Ponosevac? Is it a town, a village, a city?

3 A. No, it's not a city, it's a village.

4 Q. Who were you living there with?

5 A. With my sister-in-law, with my brother -- sorry, with my

6 father-in-law and with my kids, with my husband's family.

7 Q. All right. How many children do you have?

8 A. Two girls.

9 Q. Were they living with you in 1998 in Ponosevac?

10 A. No. Before yes, but not at the war-time.

11 Q. Are you a Roma person?

12 A. Yes.

13 Q. Did your family leave Ponosevac in 1998?

14 A. My family doesn't live in Ponosevac, it lives in Junik.

15 Q. You said you were living there in 1998.

16 A. Yes.

17 Q. How did you come to leave Ponosevac?

18 A. Because they came and told us to leave, both the Albanians and the

19 Serbs.

20 Q. Which Albanians came and told you to leave?

21 A. I don't know them.

22 Q. How do you know that you had to leave because Albanians came?

23 A. They came -- first it was the Serbs who came to our house. You

24 could tell the Albanians from the Serbs.

25 Q. What did the Serbs do when they came to your house?

Page 870

1 A. They said, You have to leave.

2 Q. Were you there then?

3 A. I was there with my father-in-law and with my kids, in Ponoshevc.

4 Q. When was this?

5 A. It was nine years ago, on the 5th of May.

6 Q. Did the Albanians come before or after the Serbs?

7 A. First came the Serbs.

8 Q. Did you go back to your home after the Serbs had told you, you had

9 to leave?

10 A. No. I stayed for two days, and then when the Albanians came and

11 told me to leave, I left for Junik.

12 Q. Why did the Serbs tell you and your family you had to leave?

13 A. They said, You have to leave because you cannot stay here anymore.

14 Q. Were you given a reason?

15 A. They said, You have to leave, all of you. You must not stay here.

16 Q. Who is "all of you"?

17 A. We could tell them. Some spoke Serbian, some didn't.

18 Q. All right. Who is the "all of you" who were told to leave? Is it

19 your family or some other people?

20 A. No. It was only us; I, with my children and my father-in-law.

21 Q. You said the Albanians came a little while later?

22 A. Yes.

23 Q. Tell the Court, tell the Judges, about what happened when the

24 Albanians came. Firstly, were you there?

25 A. Yes. I was at home. I was at home. But I didn't know them.

Page 871

1 Q. Are you talking about Ponosevac or somewhere else, when you said

2 the Albanians came?

3 A. Are you asking me about Ponosevac?

4 Q. Yes.

5 A. Or about Junik?

6 Q. I'm asking you about Ponosevac.

7 A. Yes. This is what I told you. Then we left and then I went to

8 Junik, to stay with my sister-in-law.

9 Q. Why did you leave -- why did you leave Ponosevac? What did the

10 Albanians say to you about why you had to leave?

11 A. They said to us that, You are with the Serbs. Your sister-in-law

12 is working with the Serbs. Then we left.

13 Q. Who were these Albanians?

14 A. I said I don't know them. I didn't know them. They had

15 balaclavas.

16 Q. Where did you go when you left Ponosevac?

17 A. We went to Junik, to my sister-in-law.

18 Q. Why did you go to Junik?

19 A. Because I was scared. I took my children and my father-in-law,

20 and I went to her.

21 Q. How long did you stay there?

22 A. But they fired there, too. I stayed there, I don't remember, I

23 think two or three weeks.

24 Q. All right. What sort of residence did your sister-in-law have in

25 Junik?

Page 872

1 A. It was not hers. It was given to her by the state, by the

2 government, because of her work. It was an old house.

3 Q. You just said you stayed in Junik for two or three weeks. What

4 happened after two or three weeks?

5 A. They came and fired at the apartment. We were having a coffee in

6 the morning; it was 8.00. And a bullet also hit one of the walls, even in

7 the room where we were, and they broke the glass. And then they came and

8 told us that, You have to leave, and we left.

9 Q. Who were the people who came to the house?

10 A. I didn't know them. They just told us to leave.

11 Q. What sort of people were they, men or women, for example?

12 A. No, no, they were all men, and they were many numbers.

13 Q. What were they wearing?

14 A. KLA clothes. We could tell that they were members of KLA.

15 Q. What was it about what they were wearing that -- how could you

16 tell they were KLA members?

17 A. They had that red -- red badge, I don't know, like a flag, on the

18 arm, on the arm.

19 MR. RE: Could the witness be displayed in e-court 65 ter exhibit

20 1173.

21 JUDGE HOEPFEL: And may I, meanwhile, ask in what language they

22 spoke to you?

23 THE WITNESS: [Interpretation] They spoke Albanian. Albanian.

24 JUDGE HOEPFEL: And this is also your own mother tongue?

25 THE WITNESS: [Interpretation] Can you repeat it, please? I

Page 873

1 didn't understand it.

2 JUDGE HOEPFEL: What is your own mother tongue?

3 THE WITNESS: [Interpretation] Mother? No, I speak Albanian. I

4 speak a little Roma.

5 JUDGE HOEPFEL: Thank you very much.

6 Please, Mr. Re.

7 MR. RE:

8 Q. A moment ago you said the men who came to the house were wearing

9 red badges. Just have a look at the document which is on the screen in

10 front of you. What can you tell the Court about that document?

11 A. I don't know, it's KLA, the sign of the KLA. You could tell that

12 they were KLA.

13 Q. By that, are you saying they were wearing badges looking like the

14 one on the screen in front of you?

15 A. No, no. I don't know what to tell you. You could tell that they

16 were KLA. I told them they had yellow clothes.

17 Q. Just have a look at the red badge on the screen in front of you.

18 What can you say about that red badge compared to the red badges you said

19 they were wearing, the men who came to your house? Is it the same badge

20 or a different badge, or you don't know?

21 A. No, I -- I didn't know them. There were many of them. I told you

22 that there were many.

23 Q. I'm only asking you about -- I'm just asking you about the badge

24 at the moment. What can you say about the badge on the screen? Same

25 badge, different badge, or you don't know?

Page 874

1 A. This is different from the one I saw.

2 Q. How different is it? What are the differences?

3 A. This has this KLA, and the Serbs had another one.

4 Q. I'm not quite sure I understand what you just said; the Serbs had

5 one, the KLA had one. I'm talking about the badges the men who came to

6 the house in Ponosevac were wearing. You said they were KLA people.

7 A. Oh, yes. Yes, they were of the KLA, but there were also Serbs. I

8 explained to you before. What can I tell you?

9 Q. I'm sorry, it was my -- I apologise. I meant Junik, not

10 Ponosevac. I apologise. When they came to the house in --

11 A. You are talking about Junik or what?

12 Q. I'm talking about Junik. Look at that badge there. Is that the

13 same badge or a different badge, or you don't know, that the men who came

14 to the house were wearing when they came to Junik?

15 A. No, another one.

16 Q. All right. What was the difference? What was the difference

17 between this badge and the badge the KLA men who came to the house in

18 Junik were wearing?

19 A. What can I tell you now? The Serbs had, like, yellow, black --

20 THE INTERPRETER: Interpreter's explanation: By "yellow,"

21 sometimes they refer to green, sometimes to blue. So she's saying yellow

22 but maybe you have to ask.

23 MR. RE:

24 Q. Can you describe what the badge looked like that the KLA members

25 were wearing when they came to the house in Junik?

Page 875

1 A. I couldn't recognise them. They were wearing masks. I told them

2 that day, too, that I didn't know them, didn't recognise them. They were

3 many.

4 Q. What can you tell us about the badge they were wearing? I'm only

5 talking about the badge.

6 A. You can see the sign here on the screen. There is no other sign.

7 You can see that this is the sign of the KLA.

8 Q. Maybe I'm confusing you. Is that the same badge that they were

9 wearing?

10 A. What can I tell you? I'm not an educated person. I don't know

11 what to say.

12 Q. Does it look like it?

13 A. Yes, yes.

14 Q. Thank you.

15 JUDGE ORIE: Before we continue, has this document a number

16 already? It very much looks like P9, which is now Exhibit P9, meanwhile,

17 but you didn't refer to it as such.

18 Mr. Re, I have the paper copy which --

19 [Trial Chamber and registrar confer]

20 JUDGE ORIE: The suggestion raised by the Registry is that the

21 document which we find now on our screen and which was earlier not on our

22 screen but seems to reflect similar but a bit distorted, bad colours, that

23 P9 is replaced by the document with the ERN number U0158334, because it

24 seems to depict exactly the same.

25 MR. RE: That's entirely correct. I'm informed they have been --

Page 876

1 116 -- sorry, 1173 is a clearer and cleaner and better picture of P9.

2 JUDGE ORIE: Yes. Then P9 will be replaced by the better version

3 of what is the same document or the same picture, as a matter of fact.

4 Please proceed, Mr. Re.

5 And that's, then, P9, the new P9, which is shown to the witness.

6 Please proceed.

7 MR. RE:

8 Q. Before we talked about the badge a few minutes ago, you

9 said, "They came and fired at the apartment" at 8.00 in the morning. They

10 came into the room and said, "You have to leave and we left."

11 A. Yes.

12 Q. What did they do when they came in the house?

13 A. That's correct. That's correct.

14 Q. What did they do when they came in the house?

15 A. Excuse me. They said -- may I just have some water, please.

16 They said, You have to leave here. They said to my sister-in-law,

17 You have killed people and you have to leave from here. And I have told

18 you during the previous time we met that they told us that we have to

19 leave from there, and that was it.

20 Q. Okay. When you said, "I have told you during the previous time,"

21 you're referring to me or to someone else?

22 A. I'm referring to those who told us that we had to leave. They

23 said, You have to leave under no other condition. You have killed

24 people. We were crying. And my sister-in-law said to them that, I

25 don't -- I haven't killed anyone, but they told her that, You have to

Page 877

1 leave from here anyways.

2 Q. Who was with you, apart from your sister-in-law, when you were in

3 the house and the shots were fired?

4 A. My sister-in-law, both sister-in-laws, my father-in-law's wife,

5 myself, and the two children.

6 Q. And the sister-in-law you're referring to, is that -- is that the

7 sister-in-law number 38?

8 A. Yes. Yes.

9 Q. What did you all do when they told you to leave?

10 A. We took to the road and they told us that we have to go take the

11 road to Gacifer, because Gacifer is not very far, two or three minutes

12 away.

13 Q. Who is "they" who told you, you had to take that road?

14 A. Those Albanians who also went out with their families, with their

15 children, and the KLA members. We went out and we were sent to a house.

16 It was -- it resembled a basement.

17 Q. Just going back one moment, was it the KLA members who told you,

18 you had to take the road or someone else who told you, you had to take the

19 road?

20 A. These were others. There were KLA members and there were others

21 who were not with uniforms.

22 Q. How far away was this house that resembled a basement?

23 A. Not very far. Maybe about 20 minutes away. I don't remember

24 exactly, but it wasn't very far from the house of my sister-in-law.

25 Q. Did you -- did any of you have any possessions with you?

Page 878

1 A. Could you please repeat your question?

2 Q. Did any of you have any things with you, apart from people?

3 A. Yes. The second sister-in-law had a bag with her. There were

4 some clothes.

5 Q. How many in total were you?

6 A. Well, as I said earlier, I was with my father-in-law, with my

7 sister-in-law, with children, myself. There were others as well.

8 There were many Albanians. There was a person called Jusuf Syla and his

9 wife.

10 Q. What did you do when you got to this house, the one that resembled

11 a basement?

12 A. Well, what did we do? We stayed there. Then some others came and

13 they said, You have to leave this place.

14 Q. Who were the others who came there?

15 A. I didn't know them. There were a lot. It was war. I was

16 concerned about my children. I was looking after them. They were small.

17 They were afraid.

18 Q. All right. Why did you go to this particular place?

19 A. Nimon Tofa took us out. He said, You have to go there, and don't

20 be afraid.

21 Q. Why this particular place and not any other one?

22 A. Well, the children were crying and he said that, You have to go

23 there.

24 Q. The ones who came, the others who came there and told you, you had

25 to leave, were they -- what were they wearing?

Page 879

1 A. They were civilians, in civilian clothes, and two or three of

2 them, I don't know exactly, I think were KLA members. And as I already

3 explained, my children were small. I wasn't feeling very well. It was

4 cold, it was raining, and we didn't have jackets. I was completely lost.

5 I was looking after my children. I was ill myself.

6 Q. Whereabouts in this house were you -- did you go when you went

7 there?

8 A. You mean after we left Gaciferi, that place?

9 Q. Yes.

10 A. Well, after that we left, after they told us we had to leave.

11 Q. No, no, no. After you left your sister-in-law's house in Junik

12 and you went to this other place that resembled a basement, whereabouts in

13 that place did you go to?

14 A. To Gacifer.

15 Q. All right.

16 A. Gacifer.

17 Q. Whereabouts in the house? Whereabouts in the house were you

18 sheltering?

19 A. When I left my sister-in-law's place, you mean?

20 Q. Yes.

21 A. Then they took us and they said that, You have to leave.

22 Q. Yeah, I know. I'm asking you: You went to this house.

23 Whereabouts in the house did you go to, top floor, bottom floor? Where?

24 A. It was in the bottom part, in the basement. It was a basement. I

25 don't know whose house it was. It was somebody else's house.

Page 880

1 Q. And the people who came into the house and told you, you had to

2 go, what did they say to you?

3 A. They said, You have to leave from here because you have killed

4 three persons, and she said, We haven't killed anyone. We were looking

5 after our children. And they told her that she had killed some people in

6 the apartment.

7 Q. Do you remember if those people had any weapons?

8 A. Yes.

9 Q. What sort of weapons?

10 A. Well, excuse me, I apologise, but I didn't pay attention to the

11 weapons. I was looking after my children. I was scared and we didn't

12 dare look much. I don't know what kind of weapons they had. I don't

13 remember.

14 Q. Do you remember whether they were big weapons or small weapons?

15 A. Big ones. I know they were big weapons, but what kind, that I

16 don't know.

17 JUDGE ORIE: Mr. Re, could you just seek to clarify this,

18 because "big weapons" could mean a lot of things compared to smaller

19 weapons.

20 MR. RE: All right.

21 Q. Do you know what a rifle is?

22 A. Well, how shall I explain this? I don't know what a rifle is. I

23 didn't pay attention. They had weapons, but as to what kind of weapons,

24 whether they were big or small, I didn't pay attention, I didn't see. But

25 they were armed.

Page 881

1 Q. Do you remember how they were -- I withdraw that.

2 Were they carrying the weapons or were the weapons somewhere

3 else?

4 A. I don't know, but they had some in their hands. They had one

5 weapon in their hands, but I can't remember everything.

6 Q. Do you know the difference between a pistol and a rifle, a pistol

7 being a small one and a rifle being a long one?

8 A. Well, something like this. Neither big, nor small. Some were

9 small, some were big. They had weapons. They had both big weapons and

10 small weapons.

11 MR. RE: The witness was indicating hands held apart about 30

12 centimetres apart, for the record.

13 JUDGE ORIE: I would rather say anything between 70 and 90, 30

14 centimetres being this. This is what is my recollection.

15 THE WITNESS: [Interpretation] Well, I don't know, and I really

16 don't remember.

17 MR. RE:

18 Q. What did you do when they told you to leave?

19 A. We then went to Tofaj. I took my children and we all went to

20 Tofaj.

21 Q. How far is Tofaj?

22 A. Well, maybe 20 or 30 minutes away. I really don't remember. It

23 was crowded. The children were crying.

24 Q. All right.

25 A. But I would say about 20, 25 minutes away.

Page 882

1 Q. Where did you go in Tofa?

2 A. At the mill. We stayed there.

3 Q. Is that in the countryside?

4 A. Tofaj.

5 Q. Okay. Is that in the countryside or the town itself?

6 A. No, no, it wasn't a town. Erenik was there. There was water

7 there, there was mountain there, there was a mill there.

8 Q. Why did you go there?

9 A. Why? Because we were scared. We were scared because even in

10 Gacifer they said that we had to leave, and we went there thinking that we

11 might be safe. There were a lot of people.

12 Q. What was the ethnicity of the people who -- who you were with when

13 you went towards Tofaj?

14 A. You mean from the Albanians? Excuse me.

15 Q. You said there were a lot of people when you went to Tofaj. What

16 were they, Serb, Albanian, Roma, or what were they?

17 A. No, no, Albanians. All of them were Albanians and only us were

18 Romas, the family of my husband and myself. The others were all Albanians

19 with their families and children. There were a lot.

20 Q. You said you saw some KLA members in Junik. Did you see any KLA

21 people at the mill?

22 A. You mean at the mill? Yes. Yes, there were.

23 Q. What were they wearing and what were they doing?

24 A. There were many, but -- they had yellow KLA clothes. You could

25 tell them. You could tell who the members of the KLA were.

Page 883

1 Q. You just said they were wearing yellow. I just want to clarify

2 something.

3 A. I know that they were yellow, but, as I said earlier, I wasn't

4 paying much attention, I wasn't looking around. Those that I saw, I know

5 that they had yellow clothes.

6 Q. I just want to show you a piece of paper.

7 MR. RE: Could you please show the witness this piece of paper.

8 Q. Just have a look of the piece of paper I'm showing you and tell me

9 what colour it is.

10 A. It is yellow. To me it's yellow. Yellow clothes.

11 MR. RE: Can the record reflect that I've shown the witness what I

12 think in English would be described as a green piece of paper, but I

13 understand that there's an Albanian yellow/green word.

14 JUDGE ORIE: It seems to be a light shade of green, but yes, it's

15 on the record.

16 MR. RE:

17 Q. Were these KLA members armed?

18 A. Yes, they were. There were a lot. I didn't know them. I

19 couldn't recognise them. As I said earlier, I didn't know them. But

20 there were a lot of them.

21 Q. How did they react to your group? What did they do?

22 A. Well, a certain Aslan, whom I knew, came and he maltreated us a

23 lot, my sister-in-law and father-in-law. And I went behind the mill and I

24 was there for some 20 minutes, because the children were crying, together

25 with the wife of my father-in-law, because they had taken the bag from my

Page 884

1 second sister-in-law. They wanted to search it. They turned it upside

2 down. And then I said, Please do not do this to us. And he said, Oh, you

3 should be killed. This person I knew.

4 Then I took the second sister-in-law, because they wanted to rape

5 her, and the children, and together with the wife of my father-in-law, we

6 went away from there.

7 Q. Okay. I just ask you to pause there for a moment. Describe this

8 person Aslan to the Court, please.

9 A. Aslan, him I know. He came there at the mill and he lined us up

10 and he said, You should be killed because you are with the Serbs. He said

11 this to the elder sister-in-law. He told her, You work with the Serbs and

12 you should be killed. And then I took the second sister-in-law, since I

13 cannot mention her name, and then he took this bag and I begged him not to

14 take anything from there. There were some clothes, minor things. He

15 turned everything upside down, put everything outside the bag on the

16 ground. And I begged him, Don't do this to us, Aslan.

17 Then, together with the sister-in-law and the children, I left

18 from there, while the elderly sister-in-law and the father-in-law, they

19 experienced these kinds of problems, whereas I, with the children and with

20 the second sister-in-law, left that site.

21 JUDGE ORIE: Mr. Re, I'm looking at the clock. We might need one

22 or two minutes for other matters.

23 MR. RE: Okay.

24 JUDGE ORIE: Witness 58, it's 7.00. That's the time when we

25 finish. We'd like you to come back on Monday, in the afternoon, quarter

Page 885

1 past 2.00. And I want to instruct you not to speak with anyone, whether

2 you know someone well or whether you do not know someone, not to speak

3 about the testimony you have given until now and also not about the

4 testimony still to be given. So you should not speak with anyone at this

5 moment about this.

6 THE WITNESS: [Interpretation] Excuse me, just a moment. We are

7 done for today?

8 JUDGE ORIE: We are done for today, but we'd like you to come back

9 after the weekend, Monday, quarter past 2.00. The Victims and Witnesses

10 Unit will take care of you so that you find your way and that's -- yes?

11 Then, Madam Usher will now escort you out of the courtroom.

12 Mr. Emmerson.

13 MR. EMMERSON: I may have missed it. I'm sorry, I did miss it.

14 I've just seen it on the transcript.

15 [The witness stands down]

16 JUDGE ORIE: I just want to inform the parties, if there's any

17 need to get in touch with the Chamber staff, I take it that you have the

18 communication details. You would have to call Mr. Zahar on his mobile

19 phone. Mr. Zahar knows how to reach me, if need be. That's one.

20 Then another matter. Mr. Re, I do understand that it's not easy

21 to examine a witness like this witness. Nevertheless it would have, for

22 example, saved time that when you asked her to describe Aslan, and then

23 you let her go for ten lines, at least, to repeat what she said already,

24 and nothing in it described Mr. Aslan. It's just a matter of a gentle

25 interruption, and since -- would have done. And since I cannot exclude

Page 886

1 that similar things might happen in the future, I just give you this

2 guidance.

3 If there's no other procedural matter at this moment, we'll

4 adjourn until Monday, the 12th of March, quarter past 2.00, same

5 courtroom.

6 --- Whereupon the hearing adjourned at 7.01 p.m.,

7 to be reconvened on Monday, the 12th day of

8 March, 2007, at 2.15 p.m.