1 Wednesday, 27 June 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.21 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Madam Registrar, would you please call the case.

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

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

9 JUDGE ORIE: Thank you, Madam Registrar.

10 A few and very short procedural matters. First one, the first has

11 filed its 16th application for issuance of a subpoena ad testificandum

12 which was filed the 21st of June, in which a date is mentioned of the 3rd

13 of July.

14 Mr. Re, as far as the Chamber is aware, that's far too short.

15 Could you please provide, not necessarily immediately, but a new date

16 because if we issue a subpoena then of course to start with the date

17 should be correct. Just for you to consider.

18 Then I'd like to turn into private session for a second.

19 [Private session]

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5 [Open session]

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

7 JUDGE ORIE: Yes. Yesterday I agreed, Mr. Emmerson, but perhaps

8 not in very clear words in your suggestion, your very practical

9 suggestion, how to deal with exhibits, the exhibits yesterday used in the

10 context of the testimony of Bogdan Tomas. The Chamber has given it some

11 additional thought, and for a fair procedure it should be clear for the

12 Prosecution after every witness or after the cross-examination of a

13 witness, whether any of the documents, even if portions are read, whether

14 you want to tender these documents. Because if at a later stage you would

15 tender the documents, a couple of pages, perhaps the whole of the document

16 itself, whether short or a long document, the Prosecution should be aware

17 what you are seeking to be admitted into evidence. For that reason, not

18 necessarily at this very moment, but could you please prepare that maybe

19 even later this afternoon, that the Chamber will be informed about which

20 documents in the yellow bundle that are not yet in evidence you would seek

21 to be admitted.

22 MR. EMMERSON: Yes.

23 JUDGE ORIE: As exhibits.

24 MR. EMMERSON: Absolutely.

25 JUDGE ORIE: In relation to the witness Tomas.

1 MR. EMMERSON: Absolutely. Some of the documents in that bundle

2 already are exhibits in the sense that they were exhibited in chief. For

3 those that are not, I will make the distinction between those we are

4 currently tendering and those that we're not tendering --

5 JUDGE ORIE: Yes. And --

6 MR. EMMERSON: -- with you, I hope by -- before the end of the day

7 today.

8 JUDGE ORIE: That's fine. And then, of course, with the witnesses

9 still to come you might then of course in the context of their testimony

10 decide that --

11 MR. EMMERSON: Further documents --

12 JUDGE ORIE: -- documents not yet tendered that you would like to

13 tender them but then in relation to the --

14 MR. EMMERSON: Precisely so, since the bundle, for example,

15 contains 92 ter statements of witnesses who are currently due to

16 testify --

17 JUDGE ORIE: Yes.

18 MR. EMMERSON: -- and it is likely that they will become exhibits

19 in some other form in any event. May I indicate, as I think I said

20 yesterday, that yellow file is volume 1 of what will become a series of

21 files of cross-examination material for the forensic witnesses associated

22 with the Lake Radoniq part of the evidence.

23 JUDGE ORIE: Yes.

24 MR. EMMERSON: I don't know whether Your Honour wants to move on

25 to another topic at this point --

1 JUDGE ORIE: No. As a matter of fact, I would like to hear from

2 Prosecution and Defence whether there has been any agreement on the 92 ter

3 statement of Mr. Haverinen.

4 MR. EMMERSON: Yes. I think Your Honour will see --

5 JUDGE ORIE: I do understand -- I just got a message that there is

6 an agreement, so therefore the Chamber would like to hear what your

7 agreement --

8 MR. EMMERSON: Yes.

9 JUDGE ORIE: -- OTP -- well, I just read a note.

10 "OTP has agreed with Defence proposal as to the redaction

11 regarding Haverinen."

12 If that's not true then, fine, then there's no agreement.

13 MR. EMMERSON: I think the --

14 MR. GUY-SMITH: I see a look of -- I see a look of some -- of

15 confusion on Mr. Re's face.

16 MR. RE: Astonishment. Astonishment.

17 JUDGE ORIE: Let's just establish what there is.

18 MR. EMMERSON: Let me explain the background to that. Your Honour

19 will have seen an e-mail from the Haradinaj Defence team making specific

20 proposals in relation to highlighted passages in the statement.

21 JUDGE ORIE: Yes.

22 MR. EMMERSON: Mr. Re and I lad a discussion over the lunch

23 adjournment just before we sat in which my understanding of Mr. Re's

24 position - he'll correct me if I'm wrong - is that pro tem, in other

25 words, for the time being, the proposal put forward in the e-mail is

1 acceptable to the Prosecution, subject to the Prosecution reserving the

2 right to re-call Mr. Haverinen at later stage of the proceedings should

3 they wish to have the passages that have been currently highlighted

4 admitted and referred to and be the subject for cross-examination at later

5 stage in the case. That's my understanding of Mr. Re's position, but If

6 I'm wrong about that then he can correct it.

7 JUDGE ORIE: Mr. Re, is that your position or not? If you say yes

8 or no, because if you say no, it's not our position, then there's no

9 agreement and then the Chamber will give its ruling. If you say yes,

10 there is an agreement, then there's no need to give a ruling -- at least

11 most likely not. Let's not spend too much time on it.

12 MR. RE: There's no agreement in -- precisely in those terms, no.

13 The discussion at --

14 JUDGE ORIE: Okay.

15 MR. RE: -- lunchtime in the cafeteria are not agreements.

16 JUDGE ORIE: Then the Chamber will give its ruling on that.

17 MR. GUY-SMITH: With that in mind, I think that the Balaj Defence

18 has taken a slightly different view from the Haradinaj Defence with regard

19 to this issue and we have submitted to the Chamber --

20 JUDGE ORIE: I think, as a matter of fact, it would be good that

21 the e-mail submissions you made, that is, that the proposals --

22 MR. GUY-SMITH: We will --

23 JUDGE ORIE: -- made to the Prosecution should be -- the text of

24 them should be filed in any way so that it's on the record --

25 MR. GUY-SMITH: We will.

1 JUDGE ORIE: -- What you suggested and there are slight

2 differences there.

3 MR. GUY-SMITH: Because there are slight variations between

4 them --

5 JUDGE ORIE: Yes.

6 MR. GUY-SMITH: -- but above and beyond there, I think there's a

7 different view. Our view is that his material should be excluded.

8 JUDGE ORIE: Yes, that's clear.

9 MR. RE: Does the Trial Chamber want the Prosecution's arguments

10 precisely on the record? I know the Defense have e-mailed --

11 JUDGE ORIE: Yes.

12 MR. RE: If you want, I can put them on the record what the

13 Prosecution's arguments are. It depends on the ruling, of course.

14 JUDGE ORIE: I think the arguments should not depend on the

15 ruling, but I first finish -- Mr. Harvey, your position would be?

16 MR. HARVEY: Your Honours, I also sent an e-mail to the Chamber to

17 indicate that --

18 JUDGE ORIE: I have missed that, to be quite honest. Do you have

19 a time for that? I'll immediately check.

20 MR. HARVEY: I'm afraid I don't have it on me immediately, but it

21 would have been at about 12.46, okay, thank you.

22 JUDGE ORIE: Yes. Then that also explains why I missed it. Let

23 me just have a look.

24 MR. HARVEY: Essentially adopting the position taken by the Balaj

25 team. I at that time had not had the opportunity to review the

1 Haradinaj's response --

2 JUDGE ORIE: Okay. So then you join --

3 MR. HARVEY: Yes. Well, I'm joining with Mr. Guy-Smith.

4 JUDGE ORIE: Yes, I made a mistake.

5 MR. HARVEY: Thank you.

6 JUDGE ORIE: Mr. Re.

7 MR. RE: The Prosecution's position is that the statement should

8 be admitted. The material in the statement in which Mr. Haverinen

9 describes what witnesses have said to him is, of course, hearsay. Hearsay

10 is admissible in this Tribunal. Ultimately it's a matter of weight to be

11 accorded to it. It may or may not be accepted; however, the appropriate

12 time to make the determination of the weight or whether it corroborates or

13 is the best available evidence is at the end of the proceedings. The

14 Prosecution is not in a position at the moment to say whether the evidence

15 which Mr. Haverinen gives of, say, for example, Witness 30 or what Witness

16 30 said is, in fact, the best available evidence of what Witness 30 would

17 say if he were called to testify. That is something that should be, in

18 our submission, revisited at a later point in the trial. If it comes to

19 that, the Prosecution may, and reserves its position at the moment, may

20 seek to recall Mr. Haverinen or another investigator who spoke to Witness

21 30 or any other witness who is unavailable and we cannot utilise Rule 92

22 quater to provide evidence of what a witness may have said, but that is --

23 that is the provisional view and we reserve our position in relation to

24 whether we would, in fact, call it later in the trial. Our submission is

25 it's premature to rule definitively on whether the evidence should go in.

1 So in that respect, our submission, the evidence should go in and its

2 ultimate weight be assessed at a later point when all the evidence is in.

3 JUDGE ORIE: Thank you, Mr. Re.

4 Mr. Emmerson.

5 MR. EMMERSON: May I, for the record, simply respond but by

6 putting three very short submissions on the record. The first is this.

7 As I understand the position, if this material is admitted, the essential

8 basis upon which it is admitted is that it is a statement made by someone

9 whom the Prosecution would wish to call as a witness to an investigator.

10 Now, plainly, if that were an appropriate and permissible course, it would

11 follow that whenever a witness either chose not to testify or failed to

12 attend for one reason or another, it would be open to the Prosecution in

13 those circumstances to follow the same course. And I think that is the

14 import of what Mr. Re is suggesting.

15 In other words, when a witness, such as one we had recently,

16 refuses to testify or when witnesses refuse to attend, the lacuna can be

17 filled by calling an investigator to read to the Trial Chamber the

18 witness's statement. Now, if that were right as a correct interpretation

19 of the procedure of this Tribunal, it would render the Rules, and in

20 particular the provisions of Rule 92, meaningless, because the Rules exist

21 to govern the circumstances in which a statement of a witness can be read

22 to the Tribunal where certain conditions are satisfied. Those conditions

23 are not satisfied here and nobody is suggesting that they are.

24 Secondly, the position so far as this witness is concerned is that

25 he would not be being called at all were it not for the fact that

1 Mr. Guy-Smith has been pursuing and is interested in pursuing

2 cross-examination about the way in which photo-boards have been

3 constructed and shown to witnesses for the purposes of identification.

4 And to use that, namely, what is in effect the tendering of a witness to

5 make him available so that a party representing the Defence can explore

6 the manner in which identifications have been conducted, to use that as a

7 pretext for in effect smuggling in hearsay evidence, in our submission, is

8 not a proper course for the Prosecution to take.

9 And thirdly, I am left in some uncertainty as to the position that

10 Mr. Re is proposing because he suggests that the matter is premature for

11 final decision, that it can be decided at some later stage with the

12 witness being recalled if necessary, which is what I had understood his

13 position to be, but that pro tem the material should be admitted. Now, as

14 far as the Defence position is concerned, even though the admission of

15 that material may be nil probative weight in the Trial Chamber's final

16 analysis if those witnesses do not attend, it forms part of the record of

17 these proceedings if it is admitted pursuant to the provisions of Rule 92

18 ter. And that is a record on which not only can this Trial Chamber rely

19 but any other Chamber which may be called upon to review a decision can

20 rely and on which the Prosecution can rely.

21 And in our submission that is -- whatever the implications of a

22 free evaluation of the evidence may be so far as the general Rules on a

23 relaxed approach but nonetheless a rigorous approach to analysis of

24 hearsay evidence, nonetheless to admit on to the record in these

25 proceedings statements in this form which amount to putting an

1 investigator in the witness box in the way I've indicated, to give

2 evidence that cannot meet the requirements of Rule 92, is impermissible.

3 So we would respectfully submit that if Mr. Re takes the position

4 that he does, that this is a matter that should be decided later on with

5 the witness being recalled, if necessary, to deal with it, then the

6 interim position as I suggested should be that the highlighted passages

7 are not admitted or are admitted conditionally on the terms that we had

8 set out in our e-mail. That is to say that they're not tendered for the

9 time being to show the truth of their contents. If the three witnesses

10 who have yet to be called do testify, then they may be admitted and relied

11 upon to show consistency or inconsistency but for that purpose alone. If

12 they don't testify they shouldn't be relied upon or admitted at all.

13 (redacted)

14 (redacted)

15 (redacted)

16 But, Your Honours, if the final next result of what is being

17 proposed is that this material be admitted in the recognition that it has

18 nil probative weight in the Trial Chamber's decision-making, then in our

19 submission, it fails to cross the threshold of relevance which is

20 necessary for evidence to be admitted, because evidence that is of nil

21 probative value is not material which is relevant. To be relevant it must

22 tend to assist the positions taken by one party or the other, and material

23 which fails to have any probative value simply doesn't cross that

24 threshold. Those are our submissions, Your Honour.

25 JUDGE ORIE: Mr. Guy-Smith.

1 MR. RE: Can line 22 be redacted?

2 JUDGE ORIE: Line 22, yes, 22, 23, yes.

3 MR. GUY-SMITH: Yes, I adopt the remarks made by my colleague

4 Mr. Emmerson, and would add to them quite briefly which is that in the

5 situation which we are presently in, those statements made by witnesses

6 who have chosen to speak to investigators are not merely hearsay; they

7 also are, in fact, at this time witness statements. And those witness

8 statements above and beyond the concerns that have been raised with regard

9 to Rule 92 also fall within the definition of and the concerns of the

10 Milosevic ruling that I alluded to yesterday. And as such, it is

11 impermissible -- and I will say it once again, it is impermissible for an

12 investigator to testify about the summary of witness statements.

13 As has been said, it's irrelevant before these witness testifies.

14 Which is why I made -- I was trying to make -- I understand it was a

15 belated suggestion yesterday but it was a practical one, and I said I

16 think what we're really doing here is putting the cart before the horse,

17 and based upon the submissions made by Mr. Re today it's very clear to me

18 that not only are we putting the cart before the horse but we are

19 potentially in a position where there are going to be two bites at the

20 apple if Mr. Re does not get the evidence he is satisfied with at some

21 point in time during these proceedings, and I suggest once again that the

22 more prudent course and more practical course considering the number of

23 legal issues that exist and abound with regard to this witness's

24 particular testimony at this time would be to put him off to a later date.

25 JUDGE ORIE: Thank you, Mr. Guy-Smith.

1 Mr. Harvey.

2 MR. HARVEY: Your Honour, I have nothing to add to those

3 submissions. I agree in full detail with everything that Mr. Emmerson and

4 Mr. Guy-Smith have said.

5 JUDGE ORIE: Yes.

6 MR. EMMERSON: Your Honour, could I be forgiven for one final

7 observation on this matter.

8 JUDGE ORIE: Very briefly.

9 MR. EMMERSON: Very briefly indeed. I am simply concerned what

10 occurs here has the appearance of being the thin end of the wedge, in

11 other words as a matter of logical principle, if what Mr. Re is urging

12 Your Honours to do is now accepted, then it is very difficult to see how

13 on a future application, for example, if one of those witnesses failed to

14 attend it would be difficult to distinguish between what is here proposed

15 as a matter of logic and the calling of the investigator simply to read

16 the witness's statement.

17 JUDGE ORIE: Thank you, Mr. Emmerson.

18 Mr. Re, is there any need to further --

19 MR. RE: Maybe we're not really that far apart in some respects.

20 I'm not objecting to provisional admission of the parts in relation to --

21 I think it was Witnesses 33 and 21.

22 JUDGE ORIE: It's a bit of a discussion of whether the glass is

23 half empty or half full. Nevertheless, it makes a difference when you

24 want to drink, whether you want to drink from the empty part or from the

25 full part.

1 MR. RE: I --

2 JUDGE ORIE: The Chamber sees that you are not very far apart, and

3 nevertheless, the Chamber wonders whether continuing the discussion for

4 another ten minutes would bring you any closer. If you are only 2 inches

5 away from each other, if you can bridge those 2 inches, the Chamber would

6 have expected you to have done so already and the Chamber is fully aware

7 of where the parties stand. If there is anything on the substance you

8 would like to add, please do so, Mr. Re.

9 MR. RE: Only this: If it's not clear from my submissions before,

10 I don't object at this point to provisional admission, that's why I said

11 before it can be a determined in finality at a later point in the trial.

12 I don't object with Mr. Emmerson on proposal for provisional admission --

13 I don't agree with his terms for provisional acceptance of the evidence of

14 the statement into evidence. But in relation to the point he made, and

15 this is a very important substantive one, of the logical conclusion is

16 that we could call investigators just to read on to the record what

17 witnesses have said.

18 Well, clearly, we don't intend to do that and wouldn't do that and

19 we want the witnesses to testify. It would only be if the best available

20 evidence at the end of the trial were hearsay, first-hand hearsay, we

21 would then seek leave to possibly call an investigator to give evidence of

22 what a witness has said. But that's a position we're reserving at the

23 moment.

24 And finally in relation to the Milosevic ruling which

25 Mr. Guy-Smith referred to of the 30th of September, 2002, an Appeals

1 Chamber decision on admissibility of Prosecution investigator's evidence,

2 in our submission that's not applicable here. That was a situation where

3 an investigator was asked to summarize the evidence of witnesses whose

4 statements he had not taken. It was hearsay upon hearsay and was not the

5 best available evidence. It was an attempt by the Prosecution to, in

6 effect, put a dossier before the Trial Chamber which was rejected by the

7 Trial Chamber and the Appeals Chamber and hence is distinguishable from

8 the circumstances here which we haven't yet come to.

9 JUDGE ORIE: Thank you, Mr. Re.

10 MR. GUY-SMITH: Very briefly, if I may, I believe the principle

11 remains the same. But more importantly for the moment I think we are

12 beginning to slip down a very, very steep slope --

13 JUDGE ORIE: Yes, that is clear. I think the Chamber is

14 sufficiently informed to give a ruling, but give me just a moment to

15 consider -- to speak with my colleagues.

16 [Trial Chamber confers]

17 JUDGE ORIE: Upon brief deliberation with my colleagues, all

18 submissions made this afternoon are such that they were part of our

19 deliberations earlier. I mean, we have not overlooked any of the matters

20 you raised this afternoon. Therefore -- and also in view of the urgency

21 of the matter, the Chamber will give its ruling. Unlike as usual, the

22 Chamber has not written down for itself in full detail all the reasons, so

23 therefore I give you very briefly the decision and give you some further

24 explanation.

25 The Chamber does not admit any of the highlighted portions in

1 Mr. Haverinen's statement, and of course on the remainder we'll decide

2 once Mr. Haverinen has given the attestation as required under Rule 92

3 ter. But the reasons I'll explain a bit further. So that's the decision.

4 First of all, if I may take you to paragraph 2, page 2, of the

5 statement where it reads: "Several witnesses informed us that ..."

6 The Chamber does not admit that portion because it would be corroboration

7 of other evidence. But since the Chamber is not able to see whether these

8 several witnesses might be the same witnesses of -- as the witnesses from

9 whom we heard testimony, the Chamber cannot admit this into evidence,

10 which of course does not disallow the Prosecution to put further questions

11 to Mr. Haverinen whether he could specify or what it was that he learned.

12 Then --

13 MR. RE: Your Honour --

14 JUDGE ORIE: Yes.

15 MR. RE: On that point -- just on that particular passage --

16 JUDGE ORIE: Yes.

17 MR. RE: I'm not seeking to admit that one for the truth of that.

18 It's just the background context to why they've compiled the photo-boards.

19 That's not the -- that's not the truth. I'm not pushing the truth for that

20 one.

21 JUDGE ORIE: Not in any way because I should have said that. When

22 I'm talking only about the marked portions, it may be clear to the parties

23 that what we are talking about is the substance of what the witness has

24 stated and not whether the substance is true as to its content, that's

25 what we are talking about.

1 Then the Chamber has distinguished between categories. The first

2 is the category of the witnesses that have not yet testified. To say it

3 by numbers, Witness 30, Witness 3, and Witness 25. The Chamber excludes

4 those portions because it expects these witnesses to come and to testify

5 so that the evidence can be elicited orally -- directly from the witness

6 and orally, and if there's any need to point at inconsistencies with

7 previous statements, then of course an opportunity will be there. At the

8 same time, the Chamber cannot exclude for the possibility that these

9 witnesses will, for whatever reasons, not appear and will not testify. If

10 that would be the case, then the Prosecution is -- can make an application

11 to reconsider whether those portions of the statement of Mr. Haverinen

12 should be admitted in addition to the portions that are admitted today.

13 The portions admitted, mainly the portions on photo-boards and procedures

14 followed in respect of those photo-boards.

15 Of course, if such an application will be made, then we'll get a

16 rather fundamental debate, I take it, between the parties, which will go

17 somewhere between the Milosevic decision and perhaps the Milutinovic

18 decision. The parties might want to raise at those instances matters as

19 how to deal with previous inconsistent statements or even previous

20 statements of witnesses who finally do not appear. It is well-known to

21 the Chamber that not even in the common-law jurisdictions that views on

22 that are always congruent. But of course the Chamber will then hear

23 submissions in depth as what to do under those circumstances, and that of

24 course would also include that the parties may insist on Mr. Haverinen

25 then to be recalled and then not to be examined on the photo-boards, but

1 rather on the substance of the statements.

2 So to that extent, the exclusion at this moment could not be

3 considered to be an exclusion forever.

4 Another category would be the witnesses who have testified.

5 Witness 6, Witness 21, and one witness who testified under his own name,

6 Ded Krasniqi. The Chamber does not admit the statement of Mr. Haverinen

7 in respect of the statements given by these witnesses, since ample

8 opportunity has been there to elicit from those witnesses whatever the

9 parties consider to be relevant and to put to the witnesses whether the

10 previous statements were consistent or not consistent. So that's for this

11 category the reason why the Chamber does not admit the redacted portions

12 in relation to Witness 6, Witness 21, and Witness Ded Krasniqi.

13 Then there is another, I would say, very small category. That's

14 Witness 8, which has specifically been addressed in the submissions by the

15 parties. The Chamber has not admitted the redacted portions of

16 Mr. Haverinen's statements in relation to Witness 8 for the same reasons

17 as the Chamber has given in its decision not to call the witness, not to

18 call Witness 8 to complete his cross-examination.

19 As said in that decision, if any new evidence that the Chamber

20 would hear would shed new light on reliability, credibility, of that

21 witness, that of course might have consequences as well for the exclusion

22 of those portions of Mr. Haverinen's statement dealing with the substance

23 of the statements given by Witness 8.

24 Mr. Re, you are invited to prepare a redacted statement for

25 admission, not immediately, but I think it's -- of course we would need to

1 have a redacted statement if we want to admit a 92 ter statement.

2 This is the ruling of the Chamber on the matter.

3 Yes. The Chamber would very much like to proceed as quickly as

4 possible now to the examination of Mr. Haverinen.

5 MR. EMMERSON: Yes. Can I detain Your Honours just for one

6 moment?

7 JUDGE ORIE: Yes.

8 MR. EMMERSON: In relation to the planning of the next two days'

9 hearings. The -- the next-but-one witness; in other words, not the

10 witness to follow Mr. Haverinen but the one who is due to come after that

11 in respect of whom there's an outstanding protective measures application.

12 JUDGE ORIE: Yes.

13 MR. EMMERSON: Covers quite a morass of detail concerning the

14 investigations around Lake Radoniq, and towards the back end of last week

15 we received a file of exhibits to his witness statement, not all of which

16 were in translation, which contained some quite complicated data which has

17 caused us to take some time on analysis. The translations continue to

18 arrive, the most recent having arrived I think a few minutes before we sat

19 today. I am in very serious difficulties being in a position either to

20 cross-examine that witness tomorrow or to be able to comply with the Trial

21 Chamber's ruling to disclose to the Prosecution the material I will wish

22 to use in cross-examination tomorrow.

23 Having said that, I would have no objection to the witness being

24 called in chief tomorrow, and it may be that that would be in any event as

25 far as we will get, but I'm not going -- with the greatest of diffidence,

1 I'm simply not going to be in a position between now and then to have put

2 the material together so as to be in a position effectively and

3 economically to cross-examine that witness.

4 JUDGE ORIE: Yes.

5 MR. EMMERSON: There's a related matter, if I may, very briefly.

6 Amongst the material that that witness produces is a series of documents

7 which purport to be ballistic findings and purport to support the

8 statement in the Prosecution's opening that the casings found at the canal

9 can be in one manner or another forensically connected to some casings

10 that were recovered at Gllogjan on the 24th of March.

11 Now, we have prepared a motion which we were planning to file

12 today for the exclusion of that evidence for reasons that I don't need to

13 trouble the Trial Chamber with at this point in time, but putting it very

14 briefly, if I can, there is a missing crime scene investigation forensic

15 report which is an essential link in the chain, but more fundamentally

16 than that, there has been until now no reasoning or a detailed analysis of

17 the forensic ballistic comparison, despite numerous requests from the

18 Defence for more detailed information. And the casings themselves are not

19 available for comparison by the Defence, a comparison we have been wishing

20 to make for two years in the course of our investigations and with the

21 assistance of a ballistics expert.

22 At one minute to 2.00 this afternoon the Prosecution e-mailed to

23 the Defence a statement from a Serbian ballistics expert, which I

24 obviously haven't had an opportunity to read, but which may well render

25 the motion that I intended to file -- may well require substantial

1 revision of that motion in the light of what has been put forward. The

2 short point is we are not in a position to investigated the ballistics.

3 We've just been provided with a ballistics report which we're not in a

4 position to analyse, and so far as I am aware standing here today, the

5 basis for the findings has never been properly explained. Certainly

6 hasn't been explained until the statement that was served at one minute to

7 2.00 this afternoon.

8 Now, it is frankly intolerable for the Prosecution to be

9 purporting at this stage to adduce ballistic evidence tomorrow and to be

10 serving forensic statements on the defence when plainly it is a matter

11 that they know we have been seeking to investigate for a very considerable

12 period of time and have made numerous requests for the casings to be

13 available for comparison, only to be told that they were destroyed in a

14 NATO bombing raid in 1999 and that the material couldn't properly be

15 examined. And so we're in the situation now where we cannot test whatever

16 it is the Prosecution's wishes to put forward, but one way or another it

17 makes the calling of that part of Mr. -- of the witness -- of the evidence

18 of the witness to come as the witness after next and --

19 JUDGE ORIE: Yes.

20 MR. EMMERSON: -- we're simply not in a position to deal with at

21 this stage.

22 JUDGE ORIE: Mr. Emmerson, you could have referred the Chamber to

23 the motion that you are about to file and to say that in view of the

24 information you have recently received that the motion might need

25 amendment and that it deals with your ability to cross-examine the witness

1 and to make further investigations on this material. Because what you

2 did -- well, it's not entirely for the first time, you put on the record

3 not only your problems but also some blaming of the Prosecution --

4 MR. EMMERSON: I --

5 JUDGE ORIE: Of course, and then we would now have to invite

6 Mr. Re to respond to that and to say whether it was NATO bombing or

7 something else, what kept them off, and the Chamber is -- appreciates that

8 it is informed about future problems, but at the same time it should be

9 presented in, may I say it, a rather neutral way at this moment and that

10 at a later stage we'll hear from both parties what -- who's to be blamed

11 for what. But if I would give now an opportunity to Mr. Re, that would

12 further delay the start of the testimony of Mr. Haverinen, and we could

13 have read this out of court at a certain moment as well.

14 So therefore, Mr. Re, I'm not giving you at this moment an

15 opportunity to respond, but I would like to -- to limit the -- the

16 submissions to what is necessary for the Chamber for practical purposes.

17 MR. EMMERSON: Yes. Well, I'm --

18 JUDGE ORIE: Yes. One second.

19 [Trial Chamber confers]

20 JUDGE ORIE: I should remind myself that I should slow down.

21 MR. EMMERSON: My only concern is that the Chamber should be aware

22 that dealing with the witness after next in full tomorrow is going to be

23 practically very difficult indeed.

24 JUDGE ORIE: That's abundantly clear --

25 MR. EMMERSON: Thank you.

1 JUDGE ORIE: -- by now, Mr. Emmerson.

2 Mr. Re, are you ready to call your next witness?

3 MR. RE: I am, just -- except for this. I'm just not entirely

4 clear on which passages are excluded from the 92 ter statement.

5 JUDGE ORIE: I think --

6 MR. RE: The trouble is I couldn't print it out. When it -- the

7 black which Mr. Balaj's counsel sent wouldn't print and it's slightly

8 different to Mr. Emmerson's one. There's a few slight differences.

9 JUDGE ORIE: I think as a matter of fact that for the time being

10 let's focus on what the Chamber does admit, and that is all the evidence

11 in relation to the photo-boards, et cetera, and that we're not talking

12 about the substance of the statements of the witnesses Mr. Haverinen

13 refers to. But if you need a break now and say in five minutes I get the

14 copies ready, then we would have a very early first break, then we could

15 proceed. I take it the parties are able within 20 minutes to produce a

16 statement where all the portions highlighted by the Defence are taken out.

17 MR. RE: I have the one which Mr. Guy-Smith sent. That's easy.

18 In printing it the black bits didn't come out, so I highlighted them

19 myself. There was a slight difference I think in paragraph 20 where

20 Mr. Guy-Smith wanted the whole paragraph out but Mr. Emmerson would

21 allow: "I met Witness 30 on several occasions and I obtained signed

22 statements from him ..."

23 JUDGE ORIE: Yes. 20 -- Mr. Guy-Smith is three lines. The first

24 is that Mr. Haverinen met Witness 30 on several occasions. Is that a

25 problem?

1 MR. GUY-SMITH: That is not a problem, no.

2 JUDGE ORIE: Signed -- obtained signed statements from him?

3 MR. GUY-SMITH: Not a problem.

4 JUDGE ORIE: Then I do understand what is to be taken out

5 is "about his abduction by the KLA and imprisonment in the KLA prison in

6 the village of Jablanica during the summer of 1998."

7 That's as far as paragraph 20 is concerned, Mr. Re.

8 Any further problems?

9 MR. RE: In paragraph 6 I think Mr. Guy-Smith wanted the

10 words "having" and "careful" -- it says: "After having a careful look at

11 the photo-boards." I don't think Your Honour referred to the

12 words "having" and "careful" before.

13 JUDGE ORIE: Mr. Guy-Smith.

14 MR. GUY-SMITH: I -- at this juncture, I'm willing to concede

15 those words.

16 JUDGE ORIE: So that's no problem anymore, Mr. Re.

17 Any other --

18 MR. RE: Paragraph 2, Your Honour spoke about several witnesses

19 informed us that Balaj was responsible for murders at the canal. This was

20 one portion and the next portion --

21 JUDGE ORIE: And the next sentence as well: "Because many

22 witnesses named or spoke of Toger as a perpetrator and as the responsible

23 person for the killings at the canal."

24 MR. RE: I've got that bit. The next one I think underneath that

25 which I don't think you referred to which was the last three lines

1 from: "Who claimed to have witnessed Balaj's perpetration to see whether

2 they could identify him from the photo-board ..." Your Honours didn't

3 refer to that but in my submission it just goes to the reason why there

4 was a photo-board compiled, whether they could identify someone who had

5 done something.

6 JUDGE ORIE: Yes.

7 Any problem with that?

8 MR. GUY-SMITH: With regard to this paragraph, I think that the

9 manner in which I've suggested it be constituted as sufficient.

10 JUDGE ORIE: Okay. Then it's just the two sentences, Mr. Re.

11 Any further problem?

12 MR. RE: I'm slightly unclear as to Your Honour's rulings in

13 relation to the witnesses -- the ones who testified, as to whether it was

14 the entirety going out or -- which the Defence weren't requesting or

15 whether it was selected passages.

16 JUDGE ORIE: The selected passages in relation to the witness who

17 had testified. As a matter of fact, all selected passages are not

18 admitted. It's only for different reasons, for different categories.

19 MR. RE: I've got it.

20 JUDGE ORIE: Then if everything is now clear and if you could

21 proceed without having the break at this very moment, which would be very

22 early, then I invite you to call Mr. Haverinen.

23 MR. RE: I'll do that. I call Mr. Haverinen.

24 JUDGE ORIE: Thank you.

25 Madam Usher, would you please escort Mr. Haverinen into the

1 courtroom.

2 [Trial Chamber confers]

3 [The witness entered court]

4 JUDGE ORIE: Good afternoon, Mr. Haverinen.

5 THE WITNESS: Good afternoon.

6 JUDGE ORIE: Before you give evidence in this court, the Rules of

7 Procedure and Evidence require you to make a solemn declaration that you

8 will speak the truth, the whole truth, and nothing but the truth. Madam

9 Usher now hands out to you the text. May I invite you to make that solemn

10 declaration.

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

12 whole truth, and nothing but the truth.

13 JUDGE ORIE: Thank you, Mr. Haverinen. Please be seated.

14 Mr. Haverinen, you'll first be examined by Mr. Re, counsel for the

15 Prosecution.

16 Mr. Re, you may proceed.

17 WITNESS: PEKKA HAVERINEN

18 Examination by Mr. Re:

19 Q. Good afternoon, Mr. Haverinen.

20 A. Good afternoon.

21 Q. Is your name detective -- sorry. Is your name Pekka Haverinen?

22 A. Yes.

23 Q. Were you born in August 1961?

24 A. That's correct.

25 Q. Are you currently a detective sergeant in the National Bureau of

1 Investigation in Finland?

2 A. That's correct.

3 Q. Do you have 20 years experience as a police officer?

4 A. Yes, I do.

5 Q. Have you spent 17 years in criminal investigations?

6 A. Yes, I have.

7 Q. Does that include investigations of murder, bank robberies,

8 organised crimes?

9 A. Yes.

10 Q. Any other things you investigated?

11 A. Well, it's a wide range of different crimes, but mainly the last

12 ten years just international organised crime.

13 Q. Between June 2002 and March 2005, did you work as an investigator

14 for the Office of the Prosecutor at this Tribunal?

15 A. Yes.

16 Q. Before you joined the Office of the Prosecutor and you were

17 working in Finland as an investigator, did you have experience with

18 showing witnesses what are called photo identification boards?

19 A. Yes, I did.

20 Q. Are there -- over the years, how many witnesses do you think that

21 you might have shown photo investigation boards to -- identification

22 boards to?

23 A. Well, that's quite difficult to say the right number, but maybe

24 ten.

25 Q. Are there guide-lines in Finland concerning the compilation of

1 these photo identification boards --

2 JUDGE ORIE: Mr. Re, if you would not mind, I had in mind perhaps

3 to say at a later stage, but much attention was given at -- with previous

4 witnesses to how they were educated in photo-boards, how long they took

5 lessons in it, how often they did it, et cetera. The Chamber is mainly

6 interested in how it was done here and whether that was in violation of

7 what was learned or whether it was in accordance with the guide-lines, et

8 cetera. That is of subsidiary relevance, and I would like all parties -

9 it's now at an early stage that I raise the issue, but, Mr. Guy-Smith, I'm

10 reminding you of how much time that took in the examination of previous

11 witnesses - it's of subsidiary relevance for -- it's not our primary

12 concern.

13 Please proceed.

14 MR. RE: I was just waiting for Ms. Schweiger to complete the

15 redactions, which is why I was asking these questions, but we're there

16 now.

17 Q. Detective Haverinen, I would like to show you a statement you

18 signed yesterday with a one-page correction to paragraph 30 that you

19 signed today. And I've highlighted in yellow redactions, that is, parts

20 of the statements which won't be admitted. Now, I want you to have a look

21 at this. This is the unredacted version, so I don't want to display that

22 one.

23 Can I also show you the one-page correction to paragraph 34, which

24 you signed today.

25 Is that your statement signed on each page?

1 A. Yes.

2 Q. Both of them?

3 A. Yes.

4 Q. And does it represent the evidence you would give on each of the

5 themes -- on everything in each of those paragraphs if I were to ask you

6 questions concerning those matters there?

7 A. Yeah.

8 Q. And it's all true and correct to the best of your knowledge?

9 A. Yes, it is.

10 MR. RE: On that basis, may it be received into evidence.

11 JUDGE ORIE: Mr. -- yes, you have not fully covered 92 ter. The

12 first is whether the written statement reflects what the witness said at

13 the time; and then the second portion is whether he would say the same if

14 asked today. I think you only dealt with the second one and not with

15 first one because true and correct was not limited to whether it reflects

16 what the witness stated when he signed the statement.

17 MR. RE:

18 Q. With His Honour's direction, Mr. Haverinen, does that written

19 statement reflect what you said at the time when you wrote it?

20 A. Yes.

21 JUDGE ORIE: Yes, and the other matter has --

22 MR. RE: Is covered.

23 JUDGE ORIE: -- been covered. Yes, please proceed.

24 May I take it that you want to tender it?

25 Madam Registrar, could we assign a number, although the redacted

1 version may not be yet in the electronic system.

2 THE REGISTRAR: Your Honours, this will be Exhibit Number P375,

3 marked for identification.

4 JUDGE ORIE: Yes. On the basis of the foregoing discussion, the

5 Chamber considers that there are no objections and admits P375 in

6 evidence.

7 Please proceed.

8 MR. RE: And may -- there is also a redacted version, may that

9 also be given the following exhibit number and we will do the redactions

10 to the redactions during the next break.

11 JUDGE ORIE: I suggest that P375 will be reserved for the final

12 version of the admitted document. Is that a possibility, Mr. --

13 MR. RE: Of course it is, but there's a -- there are two

14 versions. One's -- I'm sorry. I should have said. The redacted -- there

15 are two versions we prepared: A redacted version and an unredacted one,

16 one under seal and one not. So I ask that the first one be under seal and

17 the second one be the public redacted.

18 JUDGE ORIE: Yes. P376 will be the public version of the

19 statement.

20 MR. RE: May it please Your Honours.

21 JUDGE ORIE: Yes.

22 Madam Registrar. Thank you.

23 Please proceed.

24 MR. RE:

25 Q. Detective, I want to take you to paragraph 2 of your statement. A

1 portion has been taken out of that. You will see it highlighted in

2 yellow. I'm going to ask you the following questions. What was the

3 purpose of your preparing the identification board containing the

4 photograph of the accused Idriz Balaj, also known as Toger?

5 A. The purpose was when I came to the -- to the Tribunal, first of

6 all, I -- my first task was to review the in-house material. And the

7 team -- during that time the team was investigating -- investigating

8 crimes allegedly committed by the KLA --

9 MR. GUY-SMITH: Excuse me.

10 JUDGE ORIE: Mr. Guy-Smith.

11 MR. GUY-SMITH: Yes, I'm not sure whether or not the witness is

12 reading from the statement or testifying independently. Perhaps --

13 JUDGE ORIE: I can't see what is in front of the witness and

14 whether he reads anything or not.

15 Mr. Haverinen, you may not have read at all --

16 THE WITNESS: I'm not reading.

17 JUDGE ORIE: And that's what you're supposed to do. So it's --

18 you fully understood your task.

19 For Defence -- to accommodate Defence counsel, sometimes witnesses

20 will put at a distance whatever one might think people could read from, so

21 in order to avoid any confusion.

22 Please proceed, Mr. Re.

23 MR. RE:

24 Q. What I'm asking you is: What were you told that led you to look

25 for a photo-board -- or look for photographs of Idriz Balaj and who told

1 you that?

2 A. It was discussed in the team that we have to find a picture of

3 Mr. Balaj because witnesses were pointing him out as a perpetrator. That

4 was my task, to find a picture of Mr. Balaj.

5 Q. Follow-up on that, pointing him out as a perpetrator. I want you

6 to tell the Court, if you can remember, who the witnesses were or how many

7 witnesses or whatever.

8 A. And I can tell here the witnesses' names. This is a question for

9 me?

10 MR. GUY-SMITH: I think we -- depending on where this is going, we

11 may need to go into private session. I also think the --

12 JUDGE ORIE: I think that there is a risk that the witness might

13 mention names of persons who appeared before this court as protected

14 witnesses. So therefore, we turn into private session.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

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

7 JUDGE ORIE: Thank you, Madam Registrar.

8 MR. RE:

9 Q. Now, without mentioning the names you just mentioned in private

10 session, you said a moment ago that -- excuse me. You said something a

11 moment ago about a perpetrator. I've lost it on the screen. I can't find

12 it. Just excuse me for one moment. I'll find the passage. Okay. You

13 said that witnesses were pointing him out as a perpetrator. Without

14 mentioning the names of those who pointed out -- him out as a

15 perpetrator --

16 MR. GUY-SMITH: I believe that's a -- that's a misstatement of his

17 testimony. He said he had discussions with his team. So there's -- it's

18 one step removed hearsay already. He has not identified the sources of

19 his team yet.

20 MR. RE: It says --

21 MR. GUY-SMITH: By that I mean the authors of his team.

22 MR. RE: He's just identified two people who pointed -- who said

23 that he was a perpetrator --

24 JUDGE ORIE: Yes, the objection is denied. You may proceed,

25 Mr. Re.

1 MR. RE:

2 Q. Mr. Haverinen, the question was -- you said witnesses had pointed

3 him out as a perpetrator. What did they say he had done?

4 MR. GUY-SMITH: Well, at this point I'm going to object on the

5 basis that we have had previous discussions about, it is not relevant at

6 this time.

7 JUDGE ORIE: Mr. Re, earlier you said you were not seeking to

8 establish the truth of this. What then is the relevance? I take it --

9 let's --

10 MR. RE: Well --

11 JUDGE ORIE: -- I think, as a matter of fact, it is relevant,

12 Mr. Guy-Smith, to the extent of what type of crimes, whether we are

13 talking about ordinary crimes, whether we are talking about crimes which

14 fall within the jurisdiction of this Tribunal. So therefore, you may

15 proceed, and the objection is denied.

16 MR. GUY-SMITH: Well, if I might.

17 JUDGE ORIE: Yes.

18 MR. GUY-SMITH: If I might briefly respond. At this point the

19 state of the evidence is that he was working in the capacity as an

20 investigator, investigating international war crimes, and that he had

21 received information that there was a perpetrator by the name of Idriz

22 Balaj. We need not go any further. That is the reason why he was tasked

23 with --

24 JUDGE ORIE: Yes.

25 MR. GUY-SMITH: -- with the job of getting -- of putting together

1 a photo-board. And that's the reason -- that's --

2 JUDGE ORIE: Mr. Guy-Smith, I do understand that you consider

3 everyone always to stay within the limits of its competence because that's

4 the implication of your observation at this moment. Mr. Re is supposed

5 not to go in full detail, but is allowed to ask the witness what were the

6 kind of crimes the witnesses pointed out.

7 Please proceed.

8 THE WITNESS: And the question was?

9 MR. RE:

10 Q. Well, what type of crimes was he alleged to have committed as a

11 perpetrator, leading you to go and compile these photo identification

12 boards?

13 A. At this time it has to do with the corpses, the bodies, that was

14 found near the lake -- or the canal at least to Lake Radonjic. And the

15 team had already interviewed a lot of people, and they pointed out that

16 this spot where the bodies were found were actually used as -- or they

17 said that it was Idriz Balaj's or his nickname, Toger's, execution site.

18 JUDGE ORIE: Mr. Guy-Smith.

19 MR. GUY-SMITH: I -- I object, and I think for reasons that the

20 Court is well aware.

21 JUDGE ORIE: Yes. I take it the same reasons as previous one,

22 which was denied.

23 Please proceed, Mr. Re --

24 MR. GUY-SMITH: I think --

25 JUDGE ORIE: We are also now talking about geography, et cetera,

1 and the questions put by Mr. Re are admissible.

2 Please proceed, Mr. Re.

3 MR. GUY-SMITH: I trust that in the future we will not be

4 revisiting this if these people do not come, because at this time it is

5 unsourced multiple hearsay that this witness is testifying to, and based

6 on this Chamber's view with regard to that issue, I feel confident that if

7 that's the situation in which we remain, I have no difficulties; but if we

8 remain in a different situation, then I have extreme difficulties.

9 JUDGE ORIE: Please proceed, Mr. Re.

10 MR. RE:

11 Q. Mr. Haverinen, I want to ask you about the OTP's guide-lines in

12 relation to photo identification boards and procedures for showing these

13 boards to witnesses. At the time, paragraph 3 of your statement, you

14 referred to how you compiled the photo-boards. And paragraph 5 of your

15 statement you said: "When showing photo-boards to witnesses, I followed

16 the guide-lines of the ICTY. These guide-lines are very similar to those

17 I had learned in Finland," and then you refer to the procedure you

18 adopted.

19 I want to take you to this part of those guide-lines. The

20 guide-lines, which you say you were aware of, also contain a provision to

21 annex a report when you complete a photo identification or attempt one

22 with a witness. It would appear from the statements that you -- that you

23 did not prepare any such report. Is that correct?

24 A. That's correct. We didn't use the report.

25 Q. Can you please tell the Trial Chamber why you didn't use a report

1 and what you did instead of using the report?

2 A. It was just decided that we'd put -- put it all in the statement

3 and not to -- to make a separate report of it.

4 Q. Why?

5 A. Actually, I don't know why, but it felt -- I mean, the outcome was

6 the same anyway, so it was easier to put everything in the statement.

7 MR. RE: That's the evidence in chief.

8 JUDGE ORIE: Thank you, Mr. Re.

9 Who's going to cross-examine Mr. Haverinen first?

10 Mr. Guy-Smith.

11 Mr. Haverinen, you'll now be cross-examined by Mr. Guy-Smith, who

12 is counsel for Mr. Balaj.

13 We have another 15 minutes until the break, Mr. Guy-Smith.

14 MR. GUY-SMITH: Thank you.

15 JUDGE ORIE: And what I said to Mr. Re is certainly addressed to

16 you as well.

17 MR. GUY-SMITH: I understand. There will be a few preparatory

18 questions and then we will move on.

19 Cross-examination by Mr. Guy-Smith:

20 Q. You have been a police officer for some 20 years and during that

21 period of time, as I understand your evidence, you have a fair amount of

22 experience in investigating what I would call serious crimes and you have

23 on, if I heard you correctly, at least ten occasions prior to working with

24 the ICTY engaged in using photo-boards as part of your investigation

25 technique; correct?

1 A. The number --

2 Q. Give or take a few?

3 A. Yeah, I mean, it -- it might be quite correct with ten.

4 Q. And with regard to the issue of eye-witness identification and the

5 use of photo-boards, before you came to work for the ICTY, you were aware

6 as a police officer of the dangers that exist with misidentification, were

7 you not?

8 A. Yeah, sure.

9 Q. And this is a matter which has been discussed for some decades now

10 throughout the world because of the number of miscarriages of justice that

11 have occurred as a result of faulty identifications; correct.

12 JUDGE ORIE: Mr. Guy-Smith, if the witness is hesitant to answer

13 the question, I'm not going to insist on him answering the question

14 because you're asking him what discussion happened over the world in a few

15 decades. You may be aware that the Chamber is fully aware of these

16 matters.

17 MR. GUY-SMITH:

18 Q. To your knowledge and your experience, you understood the dangers

19 of this kind of evidence, and as a matter of fact because of your

20 understanding before you came to the ICTY, understand the importance of

21 following specific procedures in order to make sure that when eye-witness

22 identification was used as part of the evidence against an accused it met

23 all the requirements; correct?

24 A. Yes, that's correct.

25 Q. And that was something also of importance when you were working

1 for the ICTY in your capacity as an investigator; true?

2 A. Yeah.

3 Q. Now, when you first came to work for the ICTY as an investigator,

4 were you given documents concerning identification guide-lines?

5 JUDGE ORIE: Mr. Haverinen, before you answer that question, could

6 I invite you to come closer to the microphone because there's some

7 difficulties in hearing you.

8 Please proceed.

9 THE WITNESS: Yes, as I told you already earlier, when I came to

10 the Tribunal the first month I just reviewed the in-house material and

11 what the team was doing. And I believe, because I know -- I don't know at

12 what stage I read those guide-lines, but during that time, during the

13 summer of 2002, I -- I saw the guide-lines and I read them as well.

14 MR. GUY-SMITH:

15 Q. And were those guide-lines something that were discussed in 2002

16 with your team as something to consider in the event that you were going

17 to be using photo-boards in your investigation process?

18 A. It was not discussed more than that we knew that there were

19 guide-lines.

20 Q. And when you say "we knew," who was on your team, sir?

21 A. My team leader was Matti Raatikainen.

22 Q. Anyone --

23 A. Shall I name them all?

24 Q. Please do.

25 A. Howard Tucker, Roel Versonnen and -- wait a minute -- then later

1 on during that summer or later on in autumn, well there were Ole Lehtinen

2 and Jose Quiroz, Harjit Sandhu, Fernando Triana. There might be some

3 more.

4 Q. Okay. You've told us that you were responsible for compiling a

5 photo-board which included a photograph of Mr. Balaj; correct?

6 A. That's correct.

7 Q. And in reviewing your 92 ter statement, you received, as I

8 understand it, a photograph of Mr. Balaj from a source which is unclear,

9 but it was as a result of him having applied as a member for the KPS or

10 Kosovo Protection Service; correct?

11 A. Yeah, that's correct.

12 Q. But do you know where that photograph came from, sir?

13 A. Yeah, we didn't know who this Mr. Balaj was, and I already know

14 that the team had already obtained some photographs from his application

15 forms. And from those application forms of the photographs I picked -- I

16 found the application for one Idriz Balaj. I didn't know if that was the

17 correct person we were looking for, but so I compiled a photo-board

18 including with that Idriz Balaj.

19 Q. The photograph that you -- that you obtained from these -- from

20 these applications of Idriz Balaj, do you know what the date of that

21 photograph was?

22 A. I have no clue.

23 Q. Do you know as you sit here today when you obtained that

24 photograph, the date that you obtained it? And by that I mean the year.

25 Did you obtain that in 2002?

1 A. Yes.

2 Q. And when you got the photograph in 2002 and you went about

3 compiling the photo-board that you compiled, could you tell us the process

4 that you used in compiling that photo-board?

5 A. Well, after finding a photograph of Idriz Balaj, I tried to find

6 seven other photographs that looked like as close as Idriz Balaj. And

7 think -- I can't remember for sure, but maybe it was a Power Point

8 programme or whatever it was, I did it first on my own computer to pick

9 out these eight persons. And after doing that I took it to the mapping

10 unit and they finished it.

11 Q. Okay. When you say that you compiled it in PowerPoint, I take it

12 what you did is you made a determination that the individuals that you --

13 that you put into your photo-board spread looked as similar as they could

14 to Mr. Balaj; correct?

15 A. Yes.

16 Q. And then after -- after you did that, after you were satisfied for

17 yourself that that was the case, you then sent that photo-board, you said,

18 to the mapping unit?

19 A. Correct.

20 Q. And where was that? By that I mean physically, was that in The

21 Hague or is that in Kosovo?

22 A. No, that's in The Hague, in this building.

23 Q. After you sent your compilation to the mapping unit, I take it at

24 some point in time you got something back, some sort of product you

25 received back?

1 A. Yes.

2 Q. And what was that, was that a colour photo-board? A black and

3 white photo-board?

4 A. It was colour.

5 Q. And --

6 A. And I recall that we received three different photo-boards with

7 the same photographs of the same persons but in different order.

8 Q. Okay. You've just -- you put that in the plural, and when you did

9 that did you receive more than one set of photo-boards for potential

10 suspects or did you just receive the one photo-board that you put together

11 with regard to Mr. Balaj?

12 A. No. We received three different boards.

13 Q. Apart from the subject matter, that being Mr. Balaj, did you

14 receive any other photo-boards in 2002?

15 A. Yeah. Later on in the team we compiled more of -- or other

16 photo-boards, but I did only this one.

17 Q. And all of the efforts with regard to the compilation of this

18 photo-board in 2002 were done by you personally; correct?

19 A. I picked up -- I picked out the photographs, yes.

20 Q. And after you picked them out, as you've told us, you received

21 three sets back from the mapping unit which were the three sets which

22 would then be used -- or the plan was would then be used to show the

23 witnesses with regard to seeing whether or not they could or could not

24 identify anybody in that photo-spread or photo-board; correct?

25 A. That's how I remember it, yes.

1 JUDGE ORIE: Mr. Guy-Smith, the use of the word photograph, set of

2 photograph, sets of photograph is unclear. I take it what your question

3 was and that the witness understood it to be that you received a set of

4 three photo-boards back from the unit.

5 MR. GUY-SMITH: Correct.

6 JUDGE ORIE: Please proceed.

7 MR. GUY-SMITH:

8 Q. Now, before coming to testify in court today, you've had an

9 opportunity to review the photo-boards, have you not?

10 A. Yes.

11 Q. And you've had specifically the opportunity to review the

12 photo-boards that you prepared with regard to Idriz Balaj; true?

13 A. Yes.

14 MR. GUY-SMITH: Could we have I believe it's P364 up on the

15 screen.

16 Q. And after you -- after they come up, because they take a minute to

17 come up. After you compiled these photo-boards, did you personally ever

18 show these photo-boards to any --

19 A. Yes, I did.

20 Q. -- witnesses?

21 A. Yes, I did.

22 Q. Okay. And we'll talk about that in a bit. I believe they're up.

23 They are.

24 MR. GUY-SMITH: Could we go to the second page, please.

25 Q. Now, is this photo-board, which is designated as U0157619, one of

1 the photo-boards that you had compiled for purposes of use with regard to

2 Mr. Balaj?

3 A. Yes.

4 Q. Okay. And I take it - and just for purposes of our discussion -

5 Mr. Balaj is in position number 6 on this board, is he not?

6 A. Correct.

7 Q. And you had two other photo-boards also that were compiled at the

8 same time by the mapping unit, and those would be seen in sequential order

9 76 -- it should be the next page. 7620, correct, Mr. Balaj --

10 A. Yes.

11 Q. Mr. Balaj is in position number 4; correct?

12 A. Correct.

13 MR. GUY-SMITH: And the last one, if we could pull up the last

14 one. And that's 7621.

15 Q. And Mr. Balaj's in position number 7; correct?

16 A. Correct.

17 Q. Very good.

18 MR. GUY-SMITH: This would be a good time to take a break.

19 JUDGE ORIE: Could you give us an estimate, Mr. Guy-Smith, on how

20 much time you would still need.

21 MR. GUY-SMITH: I believe half an hour to 45 minutes.

22 JUDGE ORIE: Yes.

23 Mr. Emmerson? No cross-examination.

24 Mr. Harvey.

25 MR. HARVEY: I would think about 10 to 15 minutes, Your Honour.

1 JUDGE ORIE: Yes.

2 MR. HARVEY: Maybe 20.

3 JUDGE ORIE: Yes. We'll have a break until five minutes past --

4 ten minutes past 4.00.

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

6 [The witness stands down]

7 --- On resuming at 4.17 p.m.

8 JUDGE ORIE: I see no witness.

9 MR. GUY-SMITH: If we've got the time constraint, I'll just ask

10 the questions anyway.

11 JUDGE ORIE: Yes. You're not interested in the answers --

12 MR. GUY-SMITH: Well --

13 JUDGE ORIE: -- Mr. Guy-Smith, is that what you want to say?

14 No, I take it, that the witness will be brought into the

15 courtroom, but it gives me an opportunity to deliver a decision, that is a

16 decision on a motion for videolink testimony for Witness 56.

17 It's a decision on the Prosecution's motion of the 21st of June,

18 2007, for the testimony of Witness 56 to be heard via videolink. The

19 Prosecution submits that Witness 56 is elderly and in poor physical

20 health. According to a relative of the witness, travel to The Hague would

21 be too onerous for this witness. The same relative as apparently informed

22 the Prosecution that Witness 56 would be able to testify via videolink

23 from the country in which he currently resides.

24 The Chamber is somewhat concerned that the Prosecution has not

25 been able to make direct contact with Witness 56 in relation to this

1 motion, but has rather relied on the intermediary of a relative of the

2 witness. However, we suppose that this has been due to the witness's ill

3 health.

4 In order to keep this decision in the public domain, I will leave

5 out details tending to identify the witness. The details are found in the

6 partly confidential Prosecution's motion.

7 The Chamber has seen a medical assessment of Witness 56 dated the

8 28th of May, 2007. This was compiled by a medical practitioner, who based

9 his assessment on two recent internist's entries for Witness 56 found in a

10 hospital's out-patient log-book. The assessment specifies some relatively

11 significant ailments suffered by Witness 56 as well as the therapy

12 prescribed.

13 While the medical assessment includes the statement that, and I

14 quote: "It is our opinion that the above-mentioned ailments do not

15 prevent the person in question from travelling by air," and that, I quote

16 again: "I suggest that before any travel, the person in question undergo

17 an internist examination for a second opinion," the Chamber finds that the

18 question being answered here is too narrow.

19 Instead, the relevant question is whether a person of Witness 56's

20 advanced age and physical condition could undertake without great

21 discomfort and risk a journey to The Hague, which is likely to last

22 several days, and discharge his duty to testify. To us the answer is

23 clearly no.

24 Thus, the Chamber does not accept the Defence's oral submissions

25 of the 26th of June, 2007, that a second medical opinion should be sought

1 before the videolink motion may be decided.

2 Given that we are not persuaded by the Defence's challenge and

3 that we find the expected testimony to be sufficiently important and the

4 mode of delivery of the testimony to be compatible with the accused's

5 right to confront the witness, we find that the motion should be allowed.

6 The Prosecution has tentatively scheduled Witness 56 to testify on

7 Tuesday, the 17th of July, 2007. The Chamber invites the registry to make

8 the necessary arrangements to facilitate the witness's testimony via

9 videolink on or around that date.

10 This concludes the Chamber's decision on Witness 56.

11 May the witness be brought into the courtroom.

12 Mr. Re.

13 MR. RE: You asked me before about a date for a witness I think

14 from Serbia, the 3rd of July was the early date we had for a subpoena.

15 JUDGE ORIE: Yes.

16 MR. RE: The day before the one you just ruled on, the 16th of

17 July, would be a very suitable date.

18 JUDGE ORIE: Yes.

19 [The witness takes the stand]

20 JUDGE ORIE: Then on the assumption that on or around 17th would

21 not result in the 16th, the Chamber accepts your suggestion.

22 Mr. Guy-Smith.

23 MR. GUY-SMITH: Thank you.

24 Q. Mr. Haverinen, before the break we were discussing the compilation

25 of the photo-board, and I'd like to continue some of that conversation

1 with you with the following in mind. It's my understanding is you told us

2 that you read the identification guide-lines, and there are a couple of

3 guide-lines that exist in the ICTY, multiple photo-board identification

4 guide-lines that I'm going to read to you, because I believe you were

5 clearly familiar with them at the time that you were compiling the

6 photo-board, and then I want to ask you some questions about what you did.

7 "To ensure a fair exercise and to avoid influencing the

8 witness" --

9 JUDGE ORIE: Mr. Guy-Smith, you are reading.

10 MR. GUY-SMITH:

11 Q. -- "the following procedures for a photo-board identification

12 should be used: Use photographs of the same size and similar quality" --

13 and I pause here for a moment. I'm not reading all of the matters here

14 because some of them I don't think really are germane to our discussion.

15 "Use photographs of the same size and similar quality, nothing in

16 the backgrounds to make any photographs stand out, and photographs of the

17 same era, pick photographs of people of similar appearance to the suspect

18 and similar ethnic background, similar clothing, and similar position.

19 The photographs should show the same amount of the subject, all head and

20 shoulders shots. Where necessary, police technicians can treat

21 photographs to remove distinctive differences from backgrounds and

22 clothing," et cetera.

23 Now, I will pause there for a moment, and I take it that the

24 things that I have just read to you are all matters that you not only

25 considered but you dealt with in your compilation of the photo-board for

1 Idriz Balaj; correct?

2 A. You can say so, yes.

3 Q. Well, my question is: Can you say so, sir?

4 A. Yes.

5 Q. Okay. Now, after you had compiled the photo-board and sent it to

6 mapping and received the three sets of the photo-board back, I take it

7 what you did at that time was you reviewed them, the three sets of the

8 photo-board of Idriz Balaj, to determine whether they were satisfactory

9 for your purposes, which is to show the witnesses; correct?

10 A. Yeah, I was satisfied.

11 Q. You didn't --

12 JUDGE HOEPFEL: Mr. Guy-Smith, I think, as the witness is speaking

13 the same language, please make a pause between answer and the next

14 question.

15 MR. GUY-SMITH: Thank you, Your Honour.

16 JUDGE HOEPFEL: For the interpreters' sake.

17 MR. GUY-SMITH:

18 Q. You've just told us you were satisfied with the condition of the

19 photo-boards. I'd like you to take a look, if it's up on the screen, of

20 one of the three photo-boards that was in the set concerning Idriz Balaj

21 and ask you whether you'd agree with me that with regard to the individual

22 in position number 8, the background of that photograph is quite distinct

23 from the rest?

24 A. Correct.

25 Q. Would you agree with me that the background in positions number 2

1 and 4 are distinct from the backgrounds in the remaining positions of 1,

2 3, 5, 6, and 7?

3 A. Yeah, there are small differences, yes.

4 Q. And would it be fair to say that the individual in position number

5 2 has on a bright-coloured shirt, whereas the remaining individuals in the

6 photo-board do not?

7 A. Yeah.

8 Q. Are those differences which in your estimation could potentially

9 influence anybody who was viewing this photo-board, such that they should

10 have been corrected?

11 A. No, I don't think so.

12 Q. Okay.

13 JUDGE ORIE: Mr. Guy-Smith, it is a question which more likely

14 should be put to an expert. I consider this witness not such a level of

15 expertise that he could tell us whether a light-blue background could lead

16 someone to -- to conclusions --

17 MR. GUY-SMITH: Understood, Your Honour.

18 JUDGE ORIE: Yes. Please proceed.

19 MR. GUY-SMITH:

20 Q. With regard to the issue of the background, when you got the

21 photo-board back and you noticed, I take it - and I'm asking you did you

22 notice - that the background, particularly with regard to the individual

23 in position number 8 was different, I take it that you did not make any

24 determinations to have that sent back to have it changed --

25 A. No, I didn't --

1 Q. -- as --

2 A. No, I didn't.

3 JUDGE ORIE: Mr. Guy-Smith, you may have noticed on the other

4 photo-boards that same person is -- has a far less blue background than he

5 has on this version.

6 MR. GUY-SMITH: I'm very well aware of that, Your Honour.

7 JUDGE ORIE: Yes. Okay. Please proceed.

8 MR. GUY-SMITH:

9 Q. Now, after you had the photo-board compiled and sent back to you

10 from mapping, did you have an opportunity to show the photo-boards -- the

11 three photo-boards to somebody on your team or somebody else who did not

12 know who Idriz Balaj was so you could determine whether or not it was a

13 good photo-spread in your estimation?

14 A. At that stage, we didn't know if Mr. Balaj was the right person.

15 Q. I see.

16 A. And if I can continue, I mean, it's a landscape office and

17 everyone in the team reviewed these photo-boards.

18 Q. I see. Now, with regard to your particular practice in showing

19 individuals photo-boards of which you showed a number of people

20 photo-boards, did you, once receiving an identification, whether it be

21 positive or negative, use the same photo-board again or did you change the

22 photo-boards that you used?

23 A. I mean, we had three different sets of these photo-boards, and we

24 were picking out a photo-board in random, let's say.

25 Q. I see. So what that would mean -- and the reason you had three

1 different sets of photo-boards was because of what precisely, why three

2 sets?

3 A. Because not to use one single one to show every -- each witness.

4 Q. And is that because it's an important thing when you're showing

5 photo-boards to put the individual in a different position when you're

6 showing a photo-board board to multiple witnesses because of the

7 possibility that somebody might talk to somebody else?

8 A. Yeah, sure.

9 Q. And as a matter of fact, that's one of the -- one of the rules

10 that exists and the policy, which is once you have -- it says a positive

11 identification, I've expanded it to a negative identification, too, that

12 ideally the photo-board should be used with other witnesses; however, if

13 this is necessary, the positions of the photograph should be changed and

14 the suspected's photograph in particular should be moved; right?

15 A. Yeah, we had only these three sets of photo-boards and we were

16 using them with all our witnesses.

17 Q. Okay. I'm concerned with what you were doing, sir, not with what

18 anybody else was doing at the moment. With regard to what you did when

19 you showed witnesses photo-spreads specifically regarding Mr. Balaj, you

20 took care in this regard to make sure that his position changed from

21 witness to witness, didn't you?

22 A. I hope I did. I can't say now for sure. I might have shown some

23 witnesses the same -- the same number -- let's say the same photo-board.

24 Q. When you say you might have, do you have any records that would

25 indicate what you did in this regard? And by that I mean --

1 A. I --

2 Q. -- personal record that shows which photo-board you used with

3 regard to each witness?

4 A. Yeah, we -- we marked the photo-boards with let's say A1 or annex

5 1 or whatever.

6 Q. Well, as I say, hope springs eternal. Would it surprise you, sir,

7 if I told you that each and every photo-board you showed to witnesses

8 concerning my client, Mr. Balaj, he was in position number 6?

9 A. It's possible, yes.

10 Q. You don't believe that that in any sense affects the effectiveness

11 of the photo-spreads -- excuse me, the photo-boards that you were showing;

12 right?

13 A. I don't believe so.

14 Q. I see.

15 I'd like to go to the -- another aspect of the compilation of the

16 photo-boards, which is when you were compiling the photo-boards

17 themselves, did you attempt to make sure that the individuals who were in

18 the photo-boards were the same or of similar ethnic background?

19 A. I believe they were, because we picked them out from the

20 applications.

21 Q. And when you say you believe that they were, your basis of belief

22 is that you picked all of the potential foils from the same group of

23 photographs, and by that I mean body of information, which is the

24 applications as you put it, so you made an assumption that they were all

25 the same ethnic background. Is that your evidence?

1 A. Yeah, I never searched, I mean, the backgrounds of the other

2 persons. I just picked the photographs.

3 Q. Okay. Now, before you showed any individual a photo-board, and

4 specifically the individuals who you have mentioned in your statement,

5 would you agree with me that you did not obtain a physical description

6 from any of them? And by "physical description," I mean the height, the

7 weight, the hair colour, any distinguishing marks --

8 A. No, I didn't.

9 Q. You did not. With regard to each of the witnesses who you showed

10 photo-boards to, I take it that you attempted to make a determination of

11 whether or not any of those witnesses were familiar with the faces - and

12 specifically the face of Mr. Balaj - before you showed him or her any

13 photo-boards? And by that I mean you made a determination of whether or

14 not they had seen him on television or in the newspaper.

15 A. In the beginning when we used these first photo-boards, it was

16 more to get convinced ourselves that those persons who pointed out

17 Mr. Balaj as a potential perpetrator, we made this photo-board to show

18 those witnesses and ask them if they can recognise Mr. Balaj they have

19 been speaking of from these photo-boards.

20 Q. Well, I -- okay. I take it then your answer to my question would

21 be, no, you did not make a determination whether they had seen him on

22 television; right?

23 A. Yeah.

24 Q. You were aware, of course, that Mr. Balaj was in trial in the year

25 2002, and specifically in trial in a relatively, shall we say, notorious

1 trial, called the Dukagjin trial, were you not?

2 A. Later on I became aware of it, yes.

3 Q. When you say later on you became aware of it, that was sometime

4 before you started showing these people photo-boards for the purposes that

5 you've described to us?

6 A. I don't know the dates when I became aware of it.

7 Q. Did you personally check to see how often his likeness had been

8 shown on television --

9 A. No, I didn't.

10 Q. -- in 2002? Did you personally check to see how often his

11 likeness had been shown in a newspaper in 2002?

12 A. No, I didn't.

13 Q. Did you ask any of your colleagues whether or not they had done

14 that so you could have that information from them?

15 A. No, I didn't.

16 Q. Is the photo-board that you compiled a photo-board that you sent

17 to a member of your team to use for an interview? And by that I mean

18 Mr. Raatikainen.

19 A. Yeah, I mean, everyone in the team knew about the photo-board and

20 it was decided to use it.

21 Q. And were you involved in sending that photo-board to

22 Mr. Raatikainen in 2002 for interviews?

23 A. What do you mean here by sending it?

24 Q. Did you supply it to him? Did you give it to him?

25 A. Yeah, of course, he was my team leader sitting in the same office.

1 Q. After you compiled it and had put it together, my question to you

2 is: Was he -- did he ask you to use it -- he ask to use it so that he

3 could go out and do an interview in 2002?

4 A. I can't tell you if he was using those boards, but it was clear to

5 me that we are going to use it.

6 Q. Okay. And the photo-boards that we are referring to are the ones

7 that you've testified to, that you've seen up on the screen, those three

8 photo-boards; correct?

9 A. Correct.

10 Q. You've told us that you did not complete the photo-board

11 identification procedure report that is contained in the ICTY guide-lines

12 because - and I - if I understood your evidence correctly, because the

13 outcome would be the same. I think that's at page 35.

14 A. Yes.

15 Q. Right? Okay.

16 Now, with regard to the photo-board identification procedure

17 report, there are a series of -- there are a series of -- there are a

18 series of questions and responses that the investigators to engage in so

19 that there is a record of what actually happened during the photo-board

20 showing; right?

21 A. I believe so, yes.

22 Q. And among other things, one of the things that you were supposed

23 to do is to record the witness's reactions; right?

24 A. Is that a question?

25 Q. That's a question.

1 A. Yes.

2 Q. And the reactions that you were to record, I take it you

3 understand this from your previous experience of some number of years in

4 serious crimes, is not only a verbal reaction but any kind of physical

5 reaction that a potential witness might have; correct?

6 A. Yeah, I would -- I would put it in the statement, the reactions.

7 Q. So --

8 A. If there are any reactions.

9 Q. And if there are no reactions, that's something -- that's

10 something also that could be of importance; correct?

11 A. It could be.

12 Q. That is not information that's contained in any of the

13 statements -- in any of your recordations of what occurred during the

14 photo-board procedure, is it, physical reactions?

15 A. I guess no.

16 Q. Okay. Now, just as important as a positive identification for

17 your purposes would be a negative identification; correct?

18 A. Correct.

19 Q. And as a matter of fact, if you received a negative response, you

20 were to follow the exact same procedure as you were if you received a

21 positive response, which is that you'd have the witness sign at some place

22 that particular photo-board so that you have an accurate record of what

23 the witness viewed; right?

24 A. Just a moment. I will read your question.

25 Q. Sure.

1 A. Correct.

2 Q. And in this case, when you received a negative response, as I

3 believe you did on a couple of occasions, did you memorialise that by

4 having the witness sign the back of that particular photo-board so there

5 would be a record for this Chamber to view when there had been a

6 non-identification?

7 A. Yeah, I'm sure. It says in my statement.

8 Q. That's not my question. Did you have the witness sign the

9 photo-board in the same way that you would have the witness sign or mark

10 the photo-board where there was a positive identification? When you

11 received a negative one, did you have him do that?

12 A. I believe I did it, yes.

13 Q. Okay. During the time that you were showing the witnesses

14 photo-boards, if I understand your evidence correctly, you were in the

15 room, an interpreter was in the room, and the witness was in the room;

16 correct?

17 A. Correct.

18 Q. And could you tell us, if you recall, where you would place

19 yourself with the witness while you were showing the witness the

20 photo-spread -- I'm sorry, the photo-board, to maintain consistency?

21 A. In the same normal order as we were sitting during -- or when I

22 took the statements.

23 Q. And that would be -- you would be across from the person, would

24 you not?

25 A. Yes, I am.

1 Q. Now, after you first obtained the picture of Idriz Balaj from the

2 application forms, you knew that that was the individual, by that I mean

3 you knew that was the individual who was the focus of your investigation;

4 correct?

5 A. No, I didn't.

6 Q. Really?

7 A. We knew that the name was Idriz Balaj, but we were not convinced

8 at that stage that we had the right person, as I told you already earlier.

9 Q. I see.

10 In terms of --

11 JUDGE ORIE: May I seek some clarification there.

12 Witness, you say that you did not know the individual who was the

13 focus of your investigation. Now, you are choosing eight photographs, of

14 which you know one is of a person by the name exactly the same as the

15 person whose name you heard several times from witnesses. Even if you are

16 not sure yet that this is an identical person with the person mentioned by

17 the witnesses, where you did not pay any attention to the other seven who

18 were the name -- whose -- who they were, what their names were --

19 THE WITNESS: Yes.

20 JUDGE ORIE: -- would you still say that you are not focusing at

21 that -- that photograph of a person by the same name would not be the

22 focus of your investigation at that time?

23 THE WITNESS: No. Of course it was --

24 JUDGE ORIE: Yes.

25 THE WITNESS: -- the focus of our investigation.

1 JUDGE ORIE: That was the question, I think, that I mean you knew

2 that was the individual who was the focus of your investigation.

3 THE WITNESS: Of course.

4 JUDGE ORIE: Your answer was no --

5 THE WITNESS: Of course.

6 JUDGE ORIE: -- I didn't. We knew the name was Idriz Balaj, but

7 we were not convinced at that stage that we had the right person. So I

8 take it, and you correct your answer, that that -- the photograph of that

9 person of which you were not sure yet whether it was the person mentioned

10 by the witnesses, but you knew it was Idriz Balaj was the focus of your

11 investigation?

12 THE WITNESS: That's correct.

13 JUDGE ORIE: Yes.

14 Please proceed, Mr. Guy-Smith.

15 MR. GUY-SMITH: Thank you.

16 Q. Did you ever discuss with your colleagues as you were going

17 through the showing of photo-boards that perhaps it would be better

18 practice for somebody who did not know the identity or the likeness of my

19 client, Mr. Balaj, to show the witnesses these photo-boards?

20 A. No, we didn't.

21 Q. Did you make a determination with regard to the witnesses who you

22 showed photo-boards to whether or not they had any contact with any of the

23 other witnesses who you had shown photo-boards to?

24 A. Well, usually they were quite afraid to give statements at all.

25 Q. Well, that may be the case --

1 A. So -- yeah, but --

2 Q. -- but that's not my question.

3 A. Mm-hmm.

4 Q. Did you make a determination as to whether or not there was any

5 contact between these people?

6 A. I believe not.

7 JUDGE ORIE: Mr. Guy-Smith, you indicated a half an hour to 45

8 minutes earlier.

9 MR. GUY-SMITH: I have two more questions --

10 JUDGE ORIE: Yes.

11 MR. GUY-SMITH: -- and I was watching the clock.

12 JUDGE ORIE: Because we now --

13 MR. GUY-SMITH: I have two more questions, and I was watching the

14 clock.

15 JUDGE ORIE: Please put them to the witness.

16 MR. GUY-SMITH: I checked, and it may only be one depending on the

17 answer.

18 Q. Which is: Did you, sir, ever ask your colleague Mr. Quiroz to

19 forward to the mapping unit the photo-board that you compiled?

20 A. I can't remember telling him that.

21 Q. And when you say you can't remember telling him that - and I do

22 apologise, it's three questions now - Mr. Quiroz came on board sometime I

23 believe in 2003; correct?

24 A. Yeah, that might be the case, yes.

25 Q. And that would have been after you'd --

1 A. Yeah, sure.

2 Q. -- already compiled -- that would have been after you'd compiled

3 the photo-board and sent it to mapping unit, right?

4 A. Yeah.

5 Q. Thank you very much. Those are my questions.

6 MR. GUY-SMITH: I don't know whether or not, and I think it's of

7 perhaps some importance. I know this is an exhibit now, but I would like

8 to have these three photo-boards made somehow or other separately

9 identified --

10 JUDGE ORIE: Yes, but you mentioned for the first the ERN number,

11 and then you spoke about it the two following these ones. If you would

12 check, I would do that as well, whether they are --

13 MR. GUY-SMITH: Yes.

14 JUDGE ORIE: -- the subsequent numbers, ERN numbers --

15 MR. GUY-SMITH: Yes, yes, they are.

16 JUDGE ORIE: If that's the case, I don't think that there's any

17 need to exhibit them separately.

18 MR. GUY-SMITH: Fine. They are sequential, 7619, 7620, and 7621.

19 JUDGE ORIE: Yes, last four digits of the ERN number.

20 MR. GUY-SMITH: That's correct.

21 JUDGE ORIE: Mr. Harvey, are you ready to cross-examine?

22 MR. HARVEY: I am. Thank you, Your Honour.

23 JUDGE ORIE: Mr. Harvey is counsel for Mr. Brahimaj. Please

24 proceed.

25 Cross-examination by Mr. Harvey:

1 Q. Good afternoon, Mr. Haverinen.

2 A. Good afternoon.

3 Q. Before we get started I'm going to be asking you a number of

4 specific questions in relation to your actual practices when you

5 interviewed one particular witness and I want to make sure that you know

6 who we're talking about when I refer to particular witness numbers that we

7 are using for the protection of witnesses' identities.

8 MR. HARVEY: So perhaps if we can go into private session for a

9 moment --

10 Q. Just so that I can give you the names and then you can perhaps

11 make a note of them so that you'll have that available to you to avoid any

12 confusion while I'm asking you questions.

13 JUDGE ORIE: Yes, we turn to private session.

14 [Private session]

15 (redacted)

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8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honours, we are in open session.

11 JUDGE ORIE: Thank you, Madam Registrar.

12 MR. HARVEY:

13 Q. Mr. Haverinen, you interviewed Witness 6 in the Pristina field

14 office on the 25th of February of 2004, and subsequently you had a

15 follow-up interview with him at his home on the 2nd of March, 2004. Do

16 you recall that or do you need -- I see you turning to your 92 ter

17 statement. Do you wish to just refer to that note to confirm that, sir?

18 Do you wish to --

19 A. Yeah - no- I'm sure it's correct.

20 Q. And then immediately after that second interview which was on the

21 2nd of March of 2004, you, I take it, returned to Pristina and with one

22 day intervening, on the 4th of March, 2004, you interviewed Witness 30.

23 Is that correct?

24 A. Correct.

25 Q. And I note, for the record, that you are looking at your statement

1 in order to confirm those dates.

2 A. Yes, I do.

3 Q. Thank you. If you could put the statement to one side now as we

4 continue.

5 Your initial interview of Witness 6 you have said that you had to

6 do a follow-up interview with him because you hadn't had time to write up

7 your notes. Is that correct?

8 A. That's correct.

9 Q. In what form did you take your notes during that first interview

10 with him?

11 A. I believe I made notes in writing.

12 Q. So not on a computer?

13 A. Not on a computer.

14 Q. And was that in a notebook or on loose sheets of paper?

15 A. It's a notebook.

16 Q. And during the course of that first interview -- first of all, to

17 the best of your recollection, if you're able to assist us, how long did

18 it last?

19 A. Excuse me, which one?

20 Q. How -- the first interview in Pristina with Witness 6 on the 25th

21 of February, 2004.

22 A. I have no clue.

23 Q. During the course of that first interview in Pristina, that took

24 place in the field office; right?

25 A. Yeah, I know I have interviewed him in the field office in

1 Pristina, but I have also met him at his house several times, so I

2 can't --

3 Q. Going back to the field office where that first interview is

4 recorded as having taken place, you had access there to photo-boards;

5 correct?

6 A. Correct.

7 Q. Did you show him photo-boards during that first interview?

8 A. I will recall that I showed the photo-boards to him in his house.

9 Q. Well, the whole purpose of these two interviews was to show him

10 photo-boards, was it not?

11 A. Yes.

12 Q. Are you saying that you didn't show him photo-boards in Pristina?

13 A. Well, now -- now I'm thinking that yes, of course, I have showed

14 him photo-boards in Pristina. It must be like that.

15 Q. I appreciate this is some time ago. Do you also recall that you

16 showed him a number of individual photographs, not -- aside from the

17 photo-boards?

18 A. It is possible, yes.

19 Q. First of all, what happened to your notebook, where is that now,

20 in which you recorded your initial interview with Witness 6?

21 A. It might be back home, in Finland.

22 Q. I would be grateful if you would please check to see if it is, and

23 perhaps you could notify Mr. Re to let us know if it is there.

24 A. I will.

25 Q. Thank you.

1 The photo-board which is annex number 5, line-up number 4, which

2 shows my client, Mr. Brahimaj, do you recall -- did you compile that

3 photo-board yourself?

4 A. No, I didn't.

5 Q. Who did compile it, if you know?

6 A. I believe it was Jose Quiroz.

7 Q. Do you know of your own knowledge where the photograph of

8 Mr. Brahimaj came from for that photo-board?

9 A. I don't know.

10 Q. Secondly in relation to the compilation of photo-boards, did you

11 compile annex 8, line-up number 7, which contains the photograph of

12 Witness 37? And if you need to look at your statement --

13 A. No, I don't. I know what you are talking about.

14 Q. Okay.

15 A. And I have -- I can't recall doing it now.

16 Q. Does that mean that you don't think you did it, or you don't know

17 one way or the other?

18 A. I don't think I did it.

19 Q. Do you have any idea who did?

20 A. No, I don't.

21 Q. And again as to the photograph that appears as number 2 on that

22 photo-board of witness - which is said to be Witness 37 in this case - do

23 you know where that photograph came from?

24 A. No, I don't.

25 Q. Could you just explain, please, what was your reason for showing

1 photographs of individual victims to Witness 6?

2 A. Why I showed him photo-boards?

3 Q. No, not photo-boards. Individual --

4 A. Individual --

5 Q. -- photographs.

6 A. Yeah, we had individual photographs of persons allegedly abducted

7 by the KLA or missing persons and also allegedly taken to Jablanica to the

8 prison in Jablanica. And I believe the purpose with witness number 6 was

9 to show him those photographs in order to find out whether he could

10 recognise any of those persons being present in the prison.

11 Q. You already had some -- two statements from Witness 6 before you

12 took these photographs to him, didn't you?

13 A. I did.

14 Q. And you already had, I think, three statements from Witness 30 at

15 that stage?

16 A. That might be correct, yes.

17 Q. And you asked Witness 6 about -- and you gave him the name of

18 Witness 30 before you actually showed him a photograph, didn't you?

19 A. It's possible, yes.

20 Q. Now, that was a name that he hadn't given you, wasn't it?

21 A. No, he didn't give that name to me, no.

22 Q. And he didn't recognise the photograph either, did he?

23 A. No, no, he didn't.

24 Q. Why did you give him the name of somebody he hadn't mentioned to

25 you and whose photograph he didn't recognise?

1 A. Because they both told me that they had been in Jablanica at the

2 same time in the prison, then it was quite normal to ask a witness whether

3 he could remember another prisoner.

4 Q. So, in effect, you were seeking to prompt his recollection by

5 offering him a photograph and a name to see if that would be something

6 that he could then adopt and put into his statement. Is that correct?

7 A. No, but it was also as important -- it was also important to get

8 it right, that if he could not recognise this person, then it has to be

9 also written down.

10 JUDGE ORIE: Mr. Harvey, before you continue.

11 MR. HARVEY: Yes, Your Honour.

12 JUDGE ORIE: One of your last questions is really puzzling me.

13 "Why did you give him the name of somebody he hadn't mentioned to

14 you and whose photograph he didn't recognise?"

15 Where in one of your earlier questions you said that the name was

16 given already before the photo was shown to him. So how could you then

17 ask -- at least I fail to understand: "Why did you give him the name of

18 somebody and whose photograph he didn't recognise?" When that took place

19 only after that.

20 MR. HARVEY: I realised as I was asking the question that it

21 wasn't particularly well-formulated. The question should have simply

22 stopped with: "Why did you give him the name of somebody that he didn't

23 know."

24 JUDGE ORIE: Yes. Self-correction might have been in place here,

25 but please proceed.

1 MR. HARVEY: I was hoping to get away with it.

2 Q. Witness, let's be more serious, though. You were trying to prompt

3 Witness 6, weren't you?

4 A. Were trying to prompt, what do you mean by that?

5 Q. You were trying to nudge his recollection?

6 A. In a way, yes.

7 Q. And is that something that you consider is part of the directions

8 that you received, the guide-lines that you received, in identification

9 procedures?

10 A. No. It was a question of reliability of a witness, for both of

11 them we have been discussing here.

12 Q. Well, that's always true in questions of identification, isn't it,

13 whether the witness is reliable?

14 A. Yes.

15 Q. The question is whether you considered prompting a witness's

16 recollection as consistent with the guide-lines that you had been given?

17 A. I might have been, yes.

18 Q. Did you also consider it consistent with the guide-lines to tell

19 the witness that he got the name of a suspect wrong and to give him the

20 suspect's actual name? And I see you shaking your head in puzzlement.

21 I'll give you the specifics.

22 The witness had told you about somebody called Hamz Brahimaj. Do

23 you recall that?

24 A. I can remember that, yes.

25 Q. You showed him a photograph of Myftari Brahimaj; correct?

1 A. That's how we knew him, yes.

2 Q. And you told the witness that that is not Hamz, that's Myftari,

3 did you not?

4 A. I can't recall that. It's possible.

5 Q. Again, is that something that you consider consistent with the

6 guide-lines?

7 A. No.

8 Q. Why did you do it?

9 A. To get sure that he was -- to be sure - how should I say it? -

10 that he was talking about the right person.

11 Q. It's one thing to say: Do you recognise this person? Would you

12 not accept that it's quite another thing to say: No, you've got the name

13 wrong, that's somebody else?

14 A. I don't have my statement here, but I can hardly believe that I

15 have said that: No, you have got something wrong.

16 Q. In fairness to you, perhaps I should read to you the relevant

17 paragraph of Witness 6's statement, and you can respond as to whether or

18 not you believe that that is how you conducted this particular part of the

19 procedure. It's at paragraph 17 of the statement of Witness 6 dated the

20 2nd of March, 2004, where he says: "I have now been handed over a

21 photograph of a male person marked with a number 01483203 and can state

22 that this person is the one who caught Pal Krasniqi and this Skender Kuci

23 and maltreated them both very badly. I have stated in my previous

24 statement" --

25 MR. HARVEY: Your Honours, I think I should probably have gone --

1 I should have gone into private session before mentioning those names. I

2 do apologise.

3 JUDGE ORIE: We'll go into private session, although I'm not yet

4 convinced, but I'm also looking at you, Mr. Re. Two names --

5 MR. HARVEY: I had thought that they were both in the public

6 domain, but I'm being nudged from my right and we're just being abundantly

7 cautious here.

8 MR. RE: They're in the indictment.

9 JUDGE ORIE: We are in private session now. Madam Registrar, is

10 that correct? We are.

11 I do not easily contradict someone who says that persons are

12 protected, but here for the two names mentioned, that is, Pal Krasniqi and

13 Skender Kuci, I don't think they are in any way protected.

14 MR. HARVEY: No.

15 JUDGE ORIE: Then we return into open session.

16 And, Madam Registrar, the instruction is that the -- this portion

17 of the private session should be made public.

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

19 JUDGE ORIE: Thank you, Madam Registrar.

20 MR. HARVEY: I apologise for the confusion, Your Honour.

21 JUDGE ORIE: Better this way than the other way around,

22 Mr. Harvey.

23 MR. HARVEY: Thank you.

24 Q. To continue, Witness, I think you have it on the screen. There's

25 no need for me to start again from the beginning.

1 "I have stated in my previous statement that the person who

2 maltreated Pal and Skender after they were caught was called Hamz Brahimaj

3 together with Lahi and Nazmi Brahimaj. I can now state that this

4 photograph now shown to me is the same person I have learned to be Hamz

5 Brahimaj."

6 And in the next paragraph, number 18: "I have now been told by

7 the investigator that the person on the picture marked with," he repeats

8 the number, "is Myftar Brahimaj."

9 I'll stop there. I don't think there's any need to read anymore.

10 But you see the point? He says that you told him --

11 A. Yes, I did.

12 Q. -- the name.

13 A. Yeah.

14 Q. Do you agree or disagree with that?

15 A. I agree that I told him the name, yes, as it's written.

16 Q. I'd just like to ask you specific questions in relation to how you

17 conducted your questioning of Witness 6, both in Pristina and at his

18 home. Was he sitting or standing when he viewed the individual photos?

19 A. I can't remember that, but I suppose that we were sitting in his

20 oda.

21 Q. And in Pristina, sitting in your office?

22 A. Yes, I believe so, that's the normal way.

23 Q. Does it come to this, that you've already given Mr. Guy-Smith a

24 number of answers about your normal procedures and that you have no

25 separate recollection of exactly how those procedures went when you

1 questioned Witness 6. If you do have separate recollection, please tell

2 us.

3 A. I don't have.

4 Q. In that case, I'm not going to waste the Tribunal's time by asking

5 you all over again. But I do want you to explain, if you would, please,

6 could you look at annex 5, line-up number 4, and at photograph U0167207.

7 Do you have that?

8 A. Just a minute. Yes, I have it.

9 Q. Now, you have told the Trial Chamber --

10 MR. RE: Before it's displayed, there is a redacted and an

11 unredacted copy because it bears the signature of a protected witness. If

12 you display it, could you please display the redacted copy, which is

13 exhibit -- the second one, 1489 -- 65 ter 1489, which is Exhibit Number --

14 JUDGE ORIE: Yes, it has received an exhibit number. It is not --

15 it's an MFI number because it has not been admitted into evidence and

16 usually public redacted versions do not need to be admitted but it has an

17 MFI number, it has received an MFI number. In evidence, of course, is the

18 full unredacted document.

19 MR. RE: Yes. I'm just asking that that be the one that's

20 displayed on the screen, that's all.

21 JUDGE ORIE: Yes.

22 MR. HARVEY:

23 Q. In paragraph 15 of your statement, your 92 ter witness statement,

24 you indicate that you showed this photo-board to Witness 6 and that he

25 marked the number and signed the photo-board and it was attached to his

1 statement. Now, as Mr. Re has pointed out, the photo-board is, indeed,

2 signed, but can you tell us how and where he marked the number.

3 A. Well, I can see the number is not marked at all.

4 Q. Yes. What is your explanation for that, Mr. Haverinen?

5 A. I have no explanations for that. It's a miss --

6 Q. Well --

7 A. A mistake from me, from my side, not to be sure that the witness

8 circled the number.

9 Q. So it appears that he didn't mark the photo-board?

10 A. As you can see, there is no mark.

11 Q. Yes. Thank you.

12 MR. HARVEY: I have no further questions.

13 JUDGE ORIE: Perhaps one matter of clarification -- no. It's

14 clear to me. It was the marked copy that was supposed to be attached to

15 the 92 ter statement and it was not. Perhaps a reason to verify, I don't

16 know -- I don't think that Witness 6's statement is in evidence, but

17 whether anything is attached to his statement and whether we find anything

18 there, because that might be important for the Chamber to know whether

19 there is such a signed photo-board. So whether just the wrong copy has

20 been attached to the 92 ter statement or whether there is no copy at all

21 signed by Witness 6.

22 MR. HARVEY: Your Honour, I'm sorry, that was not my point.

23 The -- my point is that the photo-board that is attached to this witness's

24 statement is, indeed, signed by Witness 6 --

25 JUDGE ORIE: Yes, but not --

1 MR. HARVEY: -- but not marked.

2 JUDGE ORIE: I mean marked, yes.

3 MR. HARVEY: That's the point and --

4 JUDGE ORIE: Yes.

5 MR. HARVEY: -- to the best of my knowledge and belief, there does

6 not exist a marked board, as the witness has now conceded.

7 JUDGE ORIE: Yes --

8 MR. HARVEY: Thank you.

9 JUDGE ORIE: If that would be different, I take it that the

10 Chamber will receive that information.

11 MR. HARVEY: And in conclusion, Your Honour, I would ask -- I

12 would repeat my request that if the witness would be kind enough when he

13 does return to Finland to see if he can locate his original notes, I would

14 be grateful if those could be communicated to us.

15 JUDGE ORIE: Thank you. That's clear, Mr. Harvey.

16 Mr. Re, any need to re-examine the witness?

17 MR. RE: Yes, briefly. Thank you.

18 JUDGE ORIE: Please proceed.

19 MR. RE: I promise I won't be long.

20 Re-examination by Mr. Re:

21 Q. You were asked by Mr. Guy-Smith about the process of compiling

22 photo-boards containing a photograph of Idriz Balaj, but what

23 characteristics were you looking for in the applicants to the Kosovo

24 Protection Force or Service when you compiled the boards?

25 A. What characters?

1 Q. What were the things you were looking for when you were looking

2 for another seven individuals to put on the photo-board? Or another way

3 of putting it: How did you make your selection?

4 A. Not by random, but I tried to select eight -- or seven photographs

5 that would -- would be quite close to how Balaj looked or that they were

6 dressed in the same way, not using any hats, didn't have beards, and so

7 on. So I just picked seven similar pictures, similar to me.

8 Q. Mr. Guy-Smith also asked you about the fact that photograph number

9 6 in several boards shown to witnesses was that -- was the photograph of

10 Idriz Balaj. How many -- do you know or do you recall how many of the

11 witnesses who you showed that particular photo-board to, that is, the one

12 with Idriz Balaj in position number 6, how many of those witnesses knew

13 each other or were in a position to talk to each other about it?

14 MR. GUY-SMITH: Well, that is a compound question.

15 JUDGE ORIE: Well, I think that the witness should first focus on

16 whether he knows whether the witnesses he had shown the photo-board with

17 Idriz Balaj in position number 6, whether he is aware of their

18 possibilities to have contact with each other.

19 THE WITNESS: Yes, at least those two witnesses I mentioned

20 earlier in the beginning of this, they knew each other for sure because I

21 believe they were living in the same village.

22 JUDGE ORIE: Yes. You therefore would say that there would be a

23 possibility for them?

24 THE WITNESS: Yes.

25 JUDGE ORIE: That they knew each other and they were living close

1 to each other.

2 Please proceed, Mr. Re.

3 MR. RE:

4 Q. At page 69 of the transcript today, a suggestion was made by

5 Mr. Harvey that you were trying to prompt a witness in their recollection

6 by giving Witness 6 Witness 30's name and you said: "In a way, yes."

7 What other reasons are there, if there are any other reasons, for

8 you to give that second witness the first witness's name?

9 A. Well, it was quite confusing because they both stated that they

10 had been in Jablanica prison, but in their statements they didn't know

11 anything about each other. And that's -- that was to get -- to be

12 convinced that they didn't know each other at all, not even by name.

13 Q. I don't quite understand what you're saying by --

14 JUDGE ORIE: Mr. Re, before you continue, let me -- one second.

15 [Trial Chamber confers]

16 JUDGE ORIE: Mr. Re, I verified with my colleagues whether they

17 would agree with me that Mr. Harvey, while reading a portion of the

18 statement, undermined his own suggestion that the witness corrected the

19 name given by the witness. The only thing he did, he asked questions, the

20 portion read shows us that the witness then recognised the photograph and

21 said: That's the person I mentioned -- I knew under this and this name,

22 and that only after that, the name known to the investigator as the name

23 of that person was given to him. So the suggestion included in what

24 Mr. Harvey said is -- has not convinced the Chamber. I don't know whether

25 you --

1 MR. HARVEY: Your Honour.

2 JUDGE ORIE: Yes.

3 MR. HARVEY: If I could just clarify the point here. I think what

4 Mr. Re is asking about is the prompting of the witness but putting to him

5 the name of Witness 30 rather than the -- the part concerned with the Hamz

6 versus Myftari Brahimaj issue.

7 JUDGE ORIE: If that's true, then I totally misunderstood your

8 question.

9 MR. HARVEY: That was --

10 JUDGE ORIE: I apologise for that, and thank you, Mr. Harvey, for

11 coming to the aid of Mr. Re, who would certainly have been able to explain

12 to me that I was totally wrong.

13 Please proceed.

14 MR. RE:

15 Q. Mr. Haverinen --

16 MR. GUY-SMITH: Excuse me, I do apologise. We seem to be having

17 an interpretation problem in terms of receipt of interpretation.

18 JUDGE ORIE: Yes.

19 MR. GUY-SMITH: Your movement remedied it.

20 JUDGE ORIE: Yes. Thank you. Mr. Re, again apologies for my

21 misunderstanding of your question. Re-reading it, I should not have made

22 that mistake. Please proceed.

23 MR. RE: Not at all, Your Honour.

24 Q. Mr. Haverinen, I'm asking you about reasons apart from attempting,

25 in a way, to prompt the witness's recollection. What other reasons would

1 you have had or did you have, if, in fact, you had any other reasons for

2 suggesting a name to a witness?

3 A. What my reasons was why I told the witness the other witness's

4 name? Is that your -- asking?

5 Q. You said that you gave Witness 6 the name of Witness 30.

6 A. Yes. Yes, I did.

7 Q. Mr. Harvey suggested it was to prompt the witness's recollection,

8 and you said: "In a way, yes." My question is: What other reasons, if

9 you had any other reasons, would you have asked him about the name --

10 Witness 30's name?

11 A. Because I wanted to be convinced that if he knew the name of

12 that -- of that witness.

13 Q. Sort of a cross-verification or a reliability check between two

14 witnesses?

15 A. Yeah, in a way.

16 Q. And Mr. Harvey also read to you paragraphs 16 and 17 -- I'm sorry,

17 17 and 18 of Witness 6's statement of the 2nd of March, 2004. I won't

18 read it to you again, but you've recorded in the statement -- I'll just

19 read you one line.

20 "I have now been told by the investigator that the person on the

21 picture marked with number 01483203 is Myftar Brahimaj."

22 Why did you record that in Witness 6's statement, the fact that

23 you had told the witness of the real name of the person in the

24 photograph?

25 A. It was the name we knew belonged to that photograph, and just to

1 be sure that the witness was talking about the right person because he had

2 pointed out the person with another name. And apparently he knew these

3 persons in Jablanica.

4 Q. What I'm after is why did you, Pekka Haverinen, record in the

5 statement that you had corrected -- or told the witness the correct name?

6 What was the purpose of you recording what you had said to the witness in

7 that statement?

8 A. Well, I recorded it because I said it to him.

9 MR. RE: Nothing further.

10 [Trial Chamber confers]

11 JUDGE ORIE: The Bench has no questions for the witness.

12 But, Mr. Emmerson, if there's any --

13 MR. EMMERSON: Your Honour, I do apologise, having not asked any

14 questions at all, there's one matter of clarification arising out of the

15 exchange between the Bench and Mr. Re I wanted to see if I could

16 understand.

17 JUDGE ORIE: Please do so.

18 Cross-examination by Mr. Emmerson:

19 Q. I wonder if I could just ask you one or two questions, please,

20 about an answer that you just gave to Mr. Re. This is page 78, line 9,

21 you said in respect of Witness 6 and Witness 30: "Well, it was quite

22 confusing because they both stated that they had been in Jablanica

23 prison. In their statements they didn't know anything about each other."

24 And then you said: "And that was to get -- to be convinced that

25 they didn't know each other at all, not even by name."

1 And Mr. Re asked you whether that was a process of

2 cross-verification or a reliability check. Was it your concern that

3 Witness 6 was saying that he had been at Jablanica and indeed working in

4 the kitchen there at a time when if Witness 30 was a reliable witness he

5 ought to have seen him there at the same time? Is that your concern?

6 A. Both ways.

7 Q. And your concern was that one of them, therefore, may be lying?

8 A. I wouldn't say so. Just like normal police work and interviews, I

9 mean, it's quite -- you would like to know, I mean, why -- why is it like

10 that, two people being at the same spot for a long period of time don't

11 know anything of each other.

12 Q. And it wasn't simply a question of names, because when you showed

13 Witness 6 the photograph of Witness 30, he'd never seen him before?

14 A. That's -- that's what I recall him telling me.

15 Q. And before getting to the point where you needed to check the one

16 against the other, you had established that on the accounts they were

17 giving you, they should both have been there at the same time in that

18 kitchen area at the time when Pal Krasniqi and Skender Kuci escaped. Is

19 that right?

20 A. That's right.

21 Q. Yes, thank you.

22 JUDGE ORIE: Thank you, Mr. Emmerson.

23 No further questions.

24 Then since the Bench has no questions for you, Mr. Haverinen, this

25 concludes your testimony. I'd like to thank you very much --

1 THE WITNESS: Thank you.

2 JUDGE ORIE: -- for coming and answering all the questions. I

3 also would like to ask you to as quickly as possible report to Mr. Re

4 whether you found your notebook in Finland; and on the assumption that you

5 will travel back to that country, I wish you a safe trip home again.

6 THE WITNESS: Thank you, I will.

7 JUDGE ORIE: You're excused. We'll have a break -- Mr. Re.

8 MR. RE: I just wish to say the next witness is -- there's an

9 outstanding application for protective measures.

10 JUDGE ORIE: Yes.

11 MR. RE: And the next witness will be taken by Ms. Issa, assisted

12 by Mr. Kearney and Ms. Schweiger.

13 JUDGE ORIE: Yes, and I think the outstanding protective measures

14 issue, that we would further consider that also on the basis of the

15 information the witness provides to us.

16 [The witness withdrew]

17 JUDGE ORIE: So therefore, we'll start after the break in private

18 session or in this courtroom even in closed session.

19 We will have a break until five minutes to 6.00.

20 --- Recess taken at 5.37 p.m.

21 [Closed session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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2

3

4

5

6

7

8

9

10

11 Pages 6358-6362 redacted. Closed session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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 in open session.

17 [Trial Chamber confers]

18 JUDGE ORIE: Mr. Emmerson.

19 MR. EMMERSON: Two matters, if I may. Just before the witness

20 testifies, I wonder if I can register a plea for concluding his testimony

21 at five minutes to 7.00 so that we can take stock of the timetabling

22 issues that arise in relation to the next witness and as I understand it

23 several witnesses that the Prosecution indicated that it may be proposing

24 to call next week.

25 JUDGE ORIE: Yes.

1 Mr. Kearney, is it you or is it Ms. Issa who's going to examine

2 the witness?

3 Mr. Bajcetic, you'll first be examined by Ms. Issa, who's counsel

4 for the Prosecution. And may I just remind you that the solemn

5 declaration you gave when you entered the courtroom of course does not

6 only cover the matters we discussed until now but is also covering the

7 whole of your testimony as will now follow.

8 Ms. Issa, please proceed.

9 MS. ISSA: Thank you, Your Honour.

10 Examination by Ms. Issa:

11 Q. Mr. Bajcetic, can you state your full name for the record?

12 A. My name is Zarko Bajcetic.

13 Q. And your date of birth is 21 June 1953; is that correct?

14 A. Correct.

15 Q. And where were you born sir?

16 A. I was born in Guca, Lucani municipality, Serbia.

17 Q. And your ethnicity is, in fact, Serbian; correct?

18 A. Correct.

19 Q. Do you presently have an occupation?

20 A. No.

21 Q. And why is that?

22 A. Because I was retired on the 31st of January, 2006.

23 Q. And prior to the your retirement, where did you work?

24 A. I worked in the security information agency, formerly state

25 security sector.

1 Q. Okay. Now, on 24 May 2007 you provided a statement to the

2 Prosecution. Is that correct?

3 A. Correct.

4 Q. And have you had a chance to review that statement in your mother

5 tongue, Serbian?

6 A. I have.

7 Q. Have you reviewed it for accuracy?

8 A. I have.

9 Q. You've also reviewed the English translation of that statement.

10 Isn't that right?

11 A. That's correct.

12 Q. Which had been read back to you; right?

13 A. Yes.

14 Q. And, in fact, you made a couple of minor stylistic changes to --

15 in handwriting to the English translation, which you initialled at

16 paragraphs 23, 32, and 81 of that statement. Is that correct?

17 A. Correct.

18 Q. And after you reviewed the entire statement, both the English and

19 the Serbian version, you -- did you sign the statement?

20 A. I did.

21 Q. And is it true and correct what is written in those statements?

22 A. It is true and correct, yes.

23 MS. ISSA: Your Honour, I would ask that the witness be shown 65

24 ter Exhibit 1486, please.

25 JUDGE ORIE: Madam Registrar.

1 Mr. Bajcetic, we wait until it appears on the screen. There it

2 is.

3 MS. ISSA: If we can just go down to the signature page, please,

4 in the Serbian version first.

5 Q. Mr. Bajcetic, do you recognise that signature on that page?

6 A. Yes, that's my signature.

7 Q. Thank you.

8 MS. ISSA: If we can also have a look at the signature on the

9 English version, please.

10 Q. Mr. Bajcetic, do you see that there? Is that your signature?

11 A. Yes, yes, it is my signature.

12 Q. And just for the sake of completeness, if we can go to page 9,

13 paragraph 23 of the English version.

14 JUDGE ORIE: I have on page 9 no paragraph 23, Ms. Issa, but --

15 MS. ISSA: I'm sorry, if we can just go to paragraph 23. Thank

16 you. That's at page 7.

17 Thank you, Your Honour.

18 Q. Now we see an initial there at the end of that paragraph. Are

19 those your initials?

20 MS. ISSA: Can we please go to paragraph 32.

21 THE WITNESS: [Interpretation] Yes.

22 MS. ISSA:

23 Q. We see some words there which you've initialled. Are those your

24 initials?

25 A. Yes.

1 MS. ISSA: And finally, if we can just go to paragraph 81, please.

2 Q. If you look at paragraph 81 the word has been changed from "RDB

3 operative" to "technician" and there are some initials. Are those your

4 initials?

5 A. Yes.

6 Q. Thank you. Now, does that statement, Mr. Bajcetic, reflect what

7 you would say in court today if you were asked about the same matters that

8 are contained in the statement?

9 A. It does reflect all I said.

10 Q. Okay.

11 MS. ISSA: I'd like to tender this 92 ter statement at this point,

12 Your Honour, as an exhibit.

13 JUDGE ORIE: Yes, however, the last question was not answered by

14 the witness.

15 MS. ISSA: It wasn't clear. Perhaps I can re-ask that.

16 JUDGE ORIE: Perhaps -- the question was whether if you -- the

17 same questions would be put to you today, you would give the same answers.

18 THE WITNESS: [Interpretation] Yes.

19 JUDGE ORIE: Now, Ms. Issa, you went through all of the -- at

20 least almost all of the corrections, but for one. If you would not have

21 touched upon one of them, then I would have accepted that, as the witness

22 said before, that he reviewed the English text as well. But now you dealt

23 with three out of four and you have not dealt with the one in paragraph

24 84. I take it that --

25 MS. ISSA: I'm sorry, Your Honour, I just missed that one, but we

1 can go to paragraph 84 --

2 JUDGE ORIE: Yes, although it was of course already I think in

3 the -- in your first -- I don't know -- no. You only mentioned 81. Yes,

4 please proceed with 84.

5 MS. ISSA: Yes, certainly, Your Honour.

6 [Trial Chamber and registrar confer]

7 MS. ISSA:

8 Q. Now, sir, you see there's a handwritten change in paragraph 84

9 from "was recorded" is changed to the word "are," and there's some

10 initials next to that handwriting. Are those your initials?

11 A. Yes.

12 Q. Thank you.

13 JUDGE ORIE: Madam Registrar, the number to be assigned to this

14 exhibit would be ...?

15 THE REGISTRAR: Your Honours, this will be Exhibit Number P377,

16 marked for identification.

17 JUDGE ORIE: Thank you, Madam Registrar.

18 Mr. Emmerson.

19 MR. EMMERSON: Before Your Honour invites submissions from the

20 Defence as to the admission of the document --

21 JUDGE ORIE: Yes. That's --

22 MR. EMMERSON: -- I have an objection which is in substance the

23 same as an objection that I raised to the Rule 92 ter statement of the

24 last witness and I anticipate, therefore, that the Trial Chamber's ruling

25 will follow it. But may I indicate the paragraph numbers.

1 JUDGE ORIE: Yes, please do so, but I need something to write.

2 One second, please.

3 [Trial Chamber and registrar confer]

4 JUDGE ORIE: Mr. Emmerson.

5 MR. EMMERSON: Very briefly it's the whole of paragraphs 15 and

6 21, the third sentence --

7 JUDGE ORIE: One second, please.

8 MR. EMMERSON: Sorry.

9 JUDGE ORIE: 15, and you said -- yes. You said the third sentence

10 of --

11 MR. EMMERSON: Of paragraph 59.

12 JUDGE ORIE: Yes, that is the --

13 MR. EMMERSON: Sentence beginning: "I believe shots ..."

14 JUDGE ORIE: Just -- yes. First the 21, third sentence. Then

15 59 --

16 MR. EMMERSON: No, sorry, I do apologise. I've misled Your Honour

17 or maybe I spoke too quickly. The whole of paragraph 15, 1-5.

18 JUDGE ORIE: Yes.

19 MR. EMMERSON: The whole of paragraph 21.

20 JUDGE ORIE: Yes. That's not what we have on the -- oh, yes,

21 paragraphs 15 and 21, the third sentence -- I understood that wrongly. So

22 the whole of paragraph 21.

23 MR. EMMERSON: And then the third sentence of paragraph 59, which

24 begins: "I believe ..." Just that sentence.

25 JUDGE ORIE: Yes.

1 MR. EMMERSON: And on that, we respectfully submit the witness is

2 not --

3 JUDGE ORIE: Yes. When we're talking about the third sentence of

4 59 --

5 MR. EMMERSON: The sentence beginning: "I believe the shots ..."

6 JUDGE ORIE: Yes, that is halfway a sentence I think: "Considering

7 the pattern of the quite symmetric spreading of these bullets, I believe

8 that ..." So only the latter part --

9 MR. EMMERSON: Yes. "I believe" down to the word "people."

10 JUDGE ORIE: Yes.

11 MR. EMMERSON: And then paragraph 65 --

12 JUDGE ORIE: Yes.

13 MR. EMMERSON: -- Everything from the beginning of the second

14 sentence: "When checking ..." Down to the end of that page, the

15 word "prisoners."

16 JUDGE ORIE: Yes.

17 MR. EMMERSON: We object to. And as regards those latter two

18 passages, those are not passages, as the earlier two are, which fall

19 directly within the argument raised and resolved yesterday because these

20 are expressions of opinion by a person plainly not qualified to express an

21 opinion and it's a different objection which we would invite the Trial

22 Chamber to rule upon.

23 JUDGE ORIE: Have you informed Ms. Issa in advance of your

24 objections?

25 MR. EMMERSON: I didn't inform her in advance, no.

1 JUDGE ORIE: It would certainly have helped if Ms. Issa would have

2 been aware so she could have reviewed those portions.

3 MR. EMMERSON: Well, I apologise.

4 JUDGE ORIE: Are you in a position, Ms. Issa, to respond right

5 away?

6 MS. ISSA: Yes, Your Honour, I will do so.

7 JUDGE ORIE: Yes, please do so.

8 MS. ISSA: With respect of paragraph 15 clearly that's a paragraph

9 which indicates what the witness was there for. I'm not sure. Perhaps we

10 should be doing this with the witness's headphones on but subject to Your

11 Honour --

12 JUDGE ORIE: The witness has reviewed his statement in English, so

13 taking off the earphones might not have the result you wish.

14 MS. ISSA: Your Honour, he actually -- he -- it was read back to

15 him so he -- I don't believe the witness can speak English.

16 JUDGE ORIE: Oh, that's, that's not how I understood it. Yes,

17 because he initialled English text, but that's then I take it for

18 translation purposes. Okay. Let's not -- could you take off your

19 earphones for a second, Mr. Bajcetic.

20 MR. EMMERSON: Your Honours, can I save Ms. Issa some time in the

21 sense of paragraphs 15 and 21 --

22 JUDGE ORIE: Yes.

23 MR. EMMERSON: -- the objection is in substance the same objection

24 as that which I raised yesterday and upon which the Trial Chamber gave its

25 ruling, and so I recognised that the Trial Chamber is likely in respect of

1 those paragraphs to give a similar ruling. Paragraphs 59 and 65 raise a

2 different issue.

3 JUDGE ORIE: Yes.

4 [Trial Chamber confers]

5 JUDGE ORIE: Ms. Issa, one of the problems with paragraphs 15 --

6 for example, 15 is that even if they give the reasons why the witness

7 investigated certain matters, that when the question is not clear the

8 answer could be misinterpreted. So therefore, we'll exclude 15 and 21,

9 but it does not disallow you to ask the witness what was the reason or on

10 what information he would have led these investigations. But then it

11 could never be misunderstood as established facts in the statement. Then

12 for the latter two, could you -- the objection there is that it is opinion

13 rather than facts.

14 MS. ISSA: In my submission, Your Honour, it's not merely

15 opinion. It's based on his own personal observations, and the witness can

16 formulate a lay opinion based on his own personal observations. In

17 addition to that, he is an experienced police officer -- intelligence

18 officer who is in a position to make the types of observations that he has

19 made in paragraph 59, for example. And in my submission, that

20 paragraph -- that sentence must be looked at contextually in its

21 entirety. That first part of the sentence, in fact, gives it more

22 context.

23 JUDGE ORIE: Yes. If I can take you to -- for example, to

24 paragraph 65, the words --

25 MR. HARVEY: Your Honour, I apologise --

1 JUDGE ORIE: Yes, Mr. Harvey.

2 MR. HARVEY: -- for interrupting, but it appears that we've lost

3 translation again.

4 JUDGE ORIE: Let's wait until it's back.

5 MR. HARVEY: Thank you very much.

6 Back on stream, I understand. Thank you.

7 JUDGE ORIE: Thank you.

8 If I read, for example, the line: "Those bars were normally used

9 to tie cattle to, but considering the variety of cables and ropes and the

10 way they were tied, they must have been used to immobilise and probably

11 torture the prisoners."

12 Is that experience which -- or is that opinion, not an opinion

13 based on nothing at all. A few facts, opinion that goes quite a way --

14 MS. ISSA: Do you want me to respond, Your Honour?

15 JUDGE ORIE: Yes.

16 MS. ISSA: If we look at it contextually with paragraph 64, the

17 preceding paragraph, the witness clearly indicates that he received

18 information that this compound was used by the KLA as prison camp or

19 detention centre.

20 JUDGE ORIE: Yes.

21 MS. ISSA: And I think we can, if we look at the two paragraphs

22 together we can -- he's perfectly entitled to draw that --

23 JUDGE ORIE: Draw these conclusions --

24 MS. ISSA: Yes.

25 JUDGE ORIE: So you're using the word "draw," so conclusions are

1 drawn there. I think these are conclusions that --

2 MS. ISSA: They're inferences that the witness, in my submission,

3 is capable of making and the Defence can certainly cross-examine him on

4 it.

5 JUDGE ORIE: Yes.

6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber decides, Ms. Issa, to consider what we

8 find in 59 in that half a sentence and what we find in 65 as conclusions

9 for the -- or inferences for the Chamber to be made. Of course you're

10 invited to lay any foundation for the Chamber to make similar conclusions

11 as the witness has done. But 59, the line: "I believe the shots were

12 fired to execute people ..." is not admissible.

13 And 65, the portion started on the first line with the word "when"

14 up to and including the last line of page 15, ending with the

15 words "prisoners" are not admitted.

16 In addition to the portions I just mentioned to you and the

17 remainder is admitted, and perhaps you could prepare a -- an amended

18 version so that we have the redactions clear. And my final question would

19 be the cover page gives the 14th of June, 2007, as a date which is unclear

20 to me what -- what it means in addition to -- and where the date comes

21 from for statements signed already in May.

22 MS. ISSA: That must be an error, Your Honour, and I can certainly

23 amend that as well.

24 JUDGE ORIE: Yes. Then therefore the Chamber will pay no

25 attention to the date of the 14th of June on the cover page of the 92 ter

1 statement. And if you prepare a new one, perhaps you could get some --

2 one without the 14th of June on it.

3 MS. ISSA: Certainly, Your Honour. I just want --

4 JUDGE ORIE: Yes, then of course you have an opportunity to put

5 further questions to the witness.

6 MS. ISSA: I know Your Honour has ruled on paragraphs 15 and 21.

7 JUDGE ORIE: Yes.

8 MS. ISSA: But I wonder if it would be possible to hear me just on

9 those particular paragraphs so we can revisit it. If not, that's subject

10 to Your Honour, of course.

11 JUDGE ORIE: I do not fully understand. You can ask whatever

12 questions you'd like to ask about the matters covered by paragraphs 15 and

13 21, so please --

14 MS. ISSA: I'll continue.

15 JUDGE ORIE: Please proceed.

16 MS. ISSA: Yes, thank you.

17 Q. In the -- perhaps you can put your earphones back on,

18 Mr. Bajcetic?

19 JUDGE ORIE: Yes, and, Ms. Issa, you will not be surprised if you

20 ask for exactly for the same that you will meet some objections.

21 MS. ISSA: Well, I'll bear that in mind.

22 Q. Mr. Bajcetic, in paragraph 96 of your statement, you were shown a

23 number of photographs. You indicated that you recognised what was

24 depicted in those photographs. Is that correct?

25 A. Correct.

1 MS. ISSA: Your Honour, I'd just like to tender the 65 ter Exhibit

2 Number 1487 which are the photographs that are referred to in that

3 paragraph as ultimately forming part of the 92 ter statement once it's

4 amended.

5 JUDGE ORIE: Yes. Part of the 92 ter statement or would you like

6 to have them in a separate number?

7 MS. ISSA: Well, for the a time being we can have them as a

8 separate number.

9 JUDGE ORIE: Yes. The whole series then in one separate number.

10 MS. ISSA: Yes.

11 JUDGE ORIE: That would be, Madam Registrar, number ...?

12 THE REGISTRAR: Your Honours, this will be Exhibit Number P378,

13 marked for identification.

14 JUDGE ORIE: Thank you.

15 MR. GUY-SMITH: Excuse me, Your Honour.

16 JUDGE ORIE: Yes.

17 MR. GUY-SMITH: To the extent that with regard to those

18 photographs, there are some conclusions drawn. For example, ERN 4043: "I

19 recognise a body of a person who had obviously been beaten" --

20 JUDGE ORIE: Yes, but this is part of the statement.

21 MR. GUY-SMITH: Very well.

22 JUDGE ORIE: And we have ruled on the admission of the statement.

23 We have excluded certain parts. We're now dealing with the photographs as

24 such, and therefore -- but --

25 MR. GUY-SMITH: To --

1 JUDGE ORIE: -- if you would have any specific concerns there, I

2 would expect you to in cross-examination --

3 MR. GUY-SMITH: Very well.

4 JUDGE ORIE: -- to deal with it.

5 Ms. Issa -- let me just see. Yes, please proceed.

6 MS. ISSA: Yes.

7 Q. Now, Mr. Bajcetic, drawing your attention to paragraph 10 of the

8 statement, you say in that paragraph that you were sent to Djakovica on

9 July 1st, 1998, until the 1st of October or November, 1998, to investigate

10 terrorist activities and the structure of the KLA. Can you provide us --

11 can you tell us what terrorist activities you were sent there to

12 investigate. What was the nature of the terrorist activities?

13 A. The terrorists who were in that area, the area of Djakovica

14 municipality, undertook armed operations on all roads which were not safe

15 at all. That is to say that neither the police nor citizens were able to

16 use those roads.

17 JUDGE HOEPFEL: Ms. Issa, can we maybe avoid the word "terrorist,"

18 as this is a little foggy, isn't it?

19 MS. ISSA: I'm just trying to clarify that at this point, Your

20 Honour.

21 JUDGE HOEPFEL: Please.

22 MS. ISSA: Yes.

23 Q. When you use the word "terrorist," Mr. Bajcetic, what do you mean

24 by that?

25 A. I mean an armed attack on members of police, kidnapping of

1 civilians, and taking them in an unknown direction.

2 Q. And what information or intelligence did you have regarding the

3 kidnapping of civilians?

4 A. The first case of kidnapping involved a man with a last name of

5 Tomic. He was from Djakovica. He was taken away and nobody knew his

6 whereabouts. In that period of time, people simply went missing. The

7 people whose bodies were found on Radonjic Lake had been reported as

8 missing by their relatives, and there were also some Albanians who

9 provided intelligence to us from the field. We received also information

10 through operative work. So all of that information taken together was

11 something that gave us an indication on where to start looking.

12 Q. And how many persons -- what information did you have as to how

13 many persons were kidnapped by the KLA --

14 MR. EMMERSON: I'm sorry. I've been waiting to see where this

15 line of questioning was going because the witness has just given a very

16 general answer and it is in our submission -- if that is the line --

17 testimony that Ms. Issa wishes to elicit incumbent upon her now to lay the

18 foundation, the witness has referred to an individual called Tomic. We

19 now need to know, if that is to be relied upon, what the information was

20 in relation to that case, where it came from, and on what occasions it was

21 said to have occurred so an evaluation can properly be made.

22 JUDGE ORIE: Yes. At the same time, Mr. Emmerson -- Ms. Issa,

23 perhaps you first respond to the objection by Mr. Emmerson.

24 MS. ISSA: Well, I think the witness has generally stated that he

25 received information from some Albanians who provided this information and

1 that people had been reported missing as a basis of his information. I

2 hadn't gotten to asking him about Tomic specifically, but this is more

3 general as to the source of his information. And he also outlines the

4 source of his information in quite some detail in the 92 ter statement

5 itself.

6 JUDGE ORIE: Yes. And you elicit this information as finding the

7 reasons why the witness started investigations, not to establish that what

8 was reported to the witness was necessarily the truth but just a reason to

9 investigate?

10 MS. ISSA: That's correct.

11 JUDGE ORIE: And then perhaps your next question -- you said: "And

12 how many persons -- what information did you have as to how many persons

13 were kidnapped by the KLA?" Whereas the witness had not said that the

14 persons were kidnapped by the KLA. The witness only said that on the

15 basis of the information, they had a clue as to in what direction to

16 investigate, which seems to be more adequate description than you gave in

17 your next question.

18 Ms. Issa, the reason for investigation seems to be clarified.

19 Mr. Emmerson.

20 MR. EMMERSON: Yes, I wanted to say I understand Ms. Issa to have

21 conceded that this information is not being elicited in order to show the

22 truth of its contents.

23 JUDGE ORIE: Yes, that's what I understood.

24 MR. EMMERSON: That being so, further questions from the witness

25 in that direction are in our submission irrelevant.

1 MS. ISSA: Well, for the purpose of that particular question, yes,

2 Your Honour, but I don't believe that I'm conceding that for any further

3 examination on some of these matters.

4 JUDGE ORIE: For all questions still to come, we'll see for what

5 reason you put them to the witness, what the witness answers, and then if

6 there's any problem with that, we'll find out. So please proceed.

7 MS. ISSA:

8 Q. Mr. Bajcetic, you mentioned that you had information about the KLA

9 kidnapping civilians. Can you explain firstly where you got this

10 information from?

11 A. I've already mentioned the man called Sveto Tomic. He was

12 employed in Djakovica. He went missing in early July. The information

13 received was that somewhere along the road between Djakovica and Orahovac

14 he was kidnapped by the KLA. The man was gone. His relatives immediately

15 reported that, and we started an investigation to determine his

16 whereabouts. All of these activities were aimed to establish whether he

17 had been detained somewhere or killed by the KLA.

18 Q. Okay.

19 JUDGE ORIE: May I ask for one clarification.

20 May I take it that the activities were aimed to establish whether

21 this person had been detained somewhere or killed by whomever. I take it

22 that you wanted to investigate that if he was detained or if he was

23 killed, who was responsible for that?

24 THE WITNESS: [Interpretation] There was a reason -- there were

25 reasonable grounds to believe that he had been detained by the KLA. As

1 for the exact identity of the people who kidnapped him, no, we didn't have

2 that information.

3 JUDGE ORIE: So you focussed your investigation on the possibility

4 that KLA may have detained or killed that person. Is that correctly

5 understood?

6 THE WITNESS: [Interpretation] Correct.

7 JUDGE ORIE: Yes.

8 Please proceed, Ms. Issa.

9 MS. ISSA:

10 Q. You mention, sir, in your statement that the area of

11 responsibility at the time when you were connected to the RDB in

12 Djakovica -- or at least the part of the area that you were investigating

13 was the Dukagjini Zone area, that's paragraph 14 of your statement. Can

14 you explain what types of criminal activity you were investigating

15 specifically in that area?

16 A. In that area there were typical crimes committed, such as

17 kidnapping of persons, illegal trafficking of weapons from Albania into

18 the territory of Metohija, also digging of trenches and building of

19 fortifications, arming of people. There were cases of shooting on police

20 vehicles and shooting people passing through the area. So those roads

21 were not safe even during day-time, let alone at night. People could not

22 use them to travel between towns or villages.

23 Q. Based on your investigation or intelligence, how many persons were

24 kidnapped by the KLA in that area?

25 MR. EMMERSON: I'm sorry, as I've understood it, this information

1 is not being elicited in order to establish the truth of its contents, and

2 so a question of that kind posed in that way in our submission

3 transgresses that boundary; it's of that relevance.

4 JUDGE ORIE: Um --

5 MR. EMMERSON: Unless we're now going to move into examining each

6 and every one of the examples that the witness is being invited to

7 estimate.

8 JUDGE ORIE: Ms. Issa, the problem is that we are talking about

9 investigations on -- in relation to events, and in your question now for

10 the second time you linked them to KLA, whereas I earlier tried -- by

11 questioning the witness, I tried to achieve a better understanding of what

12 an investigation means, that is, that you may have suspected people or

13 suspected organisations, but it's very difficult to say who's responsible

14 before you have investigated. In your question, again you are -- let me

15 try to see whether I can put a question to the witness which might give

16 you some of the information you would need and would not need similar

17 objections.

18 Could you please tell us what was approximately the size of the

19 problem you were investigating in terms of people that went --

20 disappearing. Yes, please.

21 THE WITNESS: [Interpretation] Logically speaking, even if one

22 person goes missing and his fate is unknown, one must start an

23 investigation. In this case, 30 or even 43 persons were mentioned.

24 Therefore, we had to establish where these people were, who had kidnapped

25 them, and whether they were alive at all. The second aspect is this: The

1 roads from Djakovica to Pec via Decani were such that they were not safe

2 even for police because the KLA was present there. They were armed, and I

3 don't know whether I should refer to them as a formation, paramilitary

4 formation. At any rate, they were an armed formation.

5 JUDGE ORIE: Now, you mentioned the number of 43. What made you

6 mention a number of 43?

7 THE WITNESS: [Interpretation] I mentioned it because at that point

8 in time we were unable to establish the exact number. Various pieces of

9 information remained. The most reliable information came from people

10 whose close relatives had gone missing. However, very often it was

11 impossible even for the relatives to come to the area where their parents

12 or other relatives lived because they would have exposed themselves to a

13 potential attack.

14 JUDGE ORIE: Yes. That's not exactly an answer to my question,

15 but I'm looking at the clock. We have to finish for the day because we

16 need another five minutes for another matter.

17 Mr. Bajcetic, we'll continue tomorrow. We'd like to see you back

18 at a quarter past 2.00 in this same courtroom, and I instruct you that you

19 should not speak with anyone about the testimony, not about the testimony

20 you've given today or the testimony still to be given tomorrow.

21 Madam Usher, would you please escort Mr. Bajcetic out of the

22 courtroom.

23 [The witness stands down]

24 JUDGE ORIE: Mr. Emmerson, you asked for the last five minutes.

25 MR. EMMERSON: Yes. First of all, as regards the next witness and

1 the timetabling in that regard -- I see that Mr. Dutertre, who's

2 taking that witness, has kindly come to be with us so that we can clarify

3 the position. Essentially, as I indicated at the outset today, I'm not

4 going to be in a position to cross-examine, although in practical terms it

5 doesn't look as though we would reach cross-examination of that witness in

6 any event tomorrow. He's currently listed for 45 minutes in chief. I

7 understand from Mr. Kearney and ultimately from Mr. Dutertre, but I will

8 see if I have got this right, that there is no objection to the

9 Prosecution having to either commence or, indeed, conclude if we get that

10 far, evidence in chief without the Defence having formally notified in

11 compliance with the Trial Chamber's ruling the documents that are likely

12 to be used for cross-examination of that witness. And so if we reach that

13 point tomorrow, in other words, if we reach the point of the witness being

14 called in chief tomorrow, then I for my part have no objection. I

15 understand that Mr. Dutertre has no objection to commencing that witness's

16 evidence in chief tomorrow without service of the documents.

17 JUDGE ORIE: Mr. Dutertre, you can confirm that?

18 MR. DUTERTRE: [Interpretation] Absolutely. We don't really need

19 to -- we might waste time if we don't have information on -- we don't want

20 to waste any time.

21 JUDGE ORIE: Yes. And I do understand that late disclosure caused

22 this problem. I'm happy to see that both parties agree how to proceed.

23 MR. EMMERSON: Have you very much.

24 Secondly there is --

25 JUDGE ORIE: Mr. Dutertre.

1 MR. DUTERTRE: [Interpretation] No, I just wanted to say it was not

2 a problem of late disclosure regarding this witness, my witness. This

3 statement was given on June 12th, we had a consolidated statement today,

4 but I believe that a priori the Defence was not complaining about this

5 witness.

6 MR. EMMERSON: It -- there are difficulties as regards this

7 witness in relation to the service of the exhibits in translation rather

8 than the witness statement, but I think --

9 JUDGE ORIE: Yes. Let's --

10 MR. EMMERSON: I'm not -- [indiscernible].

11 JUDGE ORIE: Everyone is happy with how to proceed.

12 MR. EMMERSON: Secondly the exclusion application as regards the

13 ballistic evidence that that witness may or may not in due course be

14 permitted to give --

15 THE INTERPRETER: Please, could the counsel please speak into the

16 microphone.

17 MR. EMMERSON: I apologise.

18 JUDGE HOEPFEL: And a little slower.

19 MR. EMMERSON: I'm trying not to hold everybody longer than is

20 necessary.

21 The exclusion application, I have agreed with Mr. Re, we would

22 file tomorrow morning in light of the service that the report that we

23 received this afternoon. It may be that Mr. Dutertre will agree - I

24 haven't had a chance to discuss this with him - to postpone the calling of

25 that part of the witness's evidence until that matter has been resolved.

1 Then finally this: In response to a specific request from me just

2 before we sat, Ms. Issa informed me that the Prosecution's current

3 proposal for next week is to move directly to the testimony after the next

4 witness of two forensic scientists -- the two central forensic

5 scientists. I don't think there is any application for protective

6 measures in respect of either of them. And I see Mr. Dutertre -- I can't

7 see that there would be in practical terms, but the I'm waiting for the

8 confirmation.

9 MR. DUTERTRE: [Interpretation] On the protection measures, I could

10 give you more information tomorrow.

11 MR. EMMERSON: Very well. Well --

12 MR. DUTERTRE: [Interpretation] I can't give you an answer off the

13 top of my head right now, so I reserve my answer for tomorrow.

14 MR. EMMERSON: Very well.

15 MR. DUTERTRE: [Interpretation] Now, regarding the first elements

16 for the witness called tomorrow and the part of the statement that I may

17 postpone, I believe that he's talking about the ballistics side of

18 things. I would like to discuss this with Mr. Emmerson maybe outside the

19 courtroom and we could solve this among ourselves.

20 MR. EMMERSON: Yes.

21 MR. DUTERTRE: [Interpretation] I believe that we would be able to

22 find an agreement.

23 MR. EMMERSON: Then finally this: Without mentioning the names,

24 there are two central forensic scientists involved in the forensic aspect

25 of the investigation. Your Honour will recall that on the 19th of March

1 we filed an application with a list of the names of certain witnesses

2 requesting seven clear working court days' notice of the calling of the

3 particular witnesses concerned and of course those two were central to

4 that. The Prosecution replied on the 23rd of March agreeing to that

5 proposal, and on the 28th of March Your Honours incorporated that into an

6 order.

7 Now, I don't wish to be obstructive in any way, but as Your Honour

8 knows, I am not going to be here next Thursday and in any event part of

9 the proposal and part of the reasons for seeking that degree of notice is

10 that cross-examination of those witnesses on what are potentially

11 technical matters require proper advance notice and potentially, we were

12 hoping to arrange to have our own experts in court to be able to hear the

13 testimony and advise.

14 Now, I'm going to look, if I may, with Mr. Dutertre to seek a

15 solution that can accommodate all parties, but one solution may be for

16 both of those two witnesses to give their evidence in chief next week, the

17 one after the other, and for the cross-examination of each of them then to

18 be postponed until we sit again. I'm not asking for a response or a

19 ruling, but I am raising it at this stage.

20 JUDGE ORIE: You are now proposing a solution for what you

21 consider to be a problem, and I think as a matter of fact in the ruling of

22 the Chamber on sitting days and nonsitting days that we would try to make,

23 to the extent you can use that expression, Thursday a light day.

24 MR. EMMERSON: Exactly.

25 JUDGE ORIE: That means not issues which were fully contested but

1 rather other matters, as important but still not exactly the same.

2 MR. EMMERSON: And we're storing up quite a lot of them as we go

3 along at the moment.

4 JUDGE ORIE: The Chamber is looking forward to hear not whether

5 but how you resolve the problem.

6 MR. EMMERSON: Thank you.

7 JUDGE ORIE: Then Ms. Issa, perhaps if there would be a

8 possibility to agree one way or the other with the Defence on where

9 approximately the limits are, because I take it that the focus of the

10 testimony of the present witness is not the reasons why he started to

11 investigate but primarily what he found when he was investigating. And of

12 course if you say that this is reports, he received that report without

13 further substantiation, I think other sources of evidence would be more

14 appropriate to be used to establish facts in that respect. And as I tried

15 by my questions to the witness to explain, not everything is excluded

16 there. To say was it a huge problem, was it a small problem as reported

17 to you, but the concern of the Defence is that by briefly referring to

18 reports the investigators at that time received that this might be,

19 although -- might be misunderstood as establishing what had happened.

20 That's the concern, but I take it that you'll find a solution for that.

21 MS. ISSA: I will, Your Honour.

22 JUDGE ORIE: So that we can continue with the examination --

23 MS. ISSA: Yes.

24 JUDGE ORIE: -- of Mr. Bajcetic without further interruptions.

25 MS. ISSA: Certainly.

1 JUDGE ORIE: We adjourn until tomorrow, quarter past 2.00, same

2 courtroom.

3 --- Whereupon the hearing adjourned at 7.05 p.m.,

4 to be reconvened on Thursday, the 28th day of

5 June, 2007, at 2.15 p.m.

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