1 Wednesday, 22 August 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.25 p.m.

5 JUDGE ORIE: Madam Registrar, may I invite you to call the case.

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

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

8 JUDGE ORIE: Thank you very much. Good afternoon to everyone.

9 Before the Chamber gives an opportunity to you, Mr. Dutertre, to

10 re-examine Professor Dunjic, I'd like to deliver one decision and give a

11 statement on behalf of the Chamber. It's the reasons for the subpoena of

12 Witness 28 and disposal of a motion filed on the 5th of March, 2007.

13 These are the reasons -- these are the Chamber's reasons for the

14 issuance of a subpoena to Witness 28 on the 12th of July, 2007, and we

15 will also proceed to dispose of a Defence motion dating the 5th of March,

16 2007.

17 First, as to the subpoena.

18 Considering that, on the 4th of July, 2007, the Defence for

19 Mr. Haradinaj objected to the issuance of a subpoena for Witness 28, and

20 that the other two Defence teams joined that submission, the Chamber will

21 now give its reasons for issuing the subpoena.

22 We recall that the Prosecution filed its fifteenth application for

23 issuance of a subpoena on the 20th of June, 2007, wherein it stated that

24 Witness 28 was unwilling to come to The Hague to testify.

25 The Defence objected to this application on three grounds; namely,

1 that the anticipated evidence of Witness 28 would be of very limited

2 assistance to the Chamber, that the witness is refusing to disclose her

3 sources and her notebooks, and that parts of the evidence are inadmissible

4 on various grounds.

5 The Chamber was not persuaded that Witness 28's anticipated

6 evidence would be of very limited assistance. The evidence satisfies the

7 prima facie requirements of relevance for the issuing of a subpoena. The

8 other arguments raised by the Defence relate to the reliability and the

9 admission of the potential evidence, matters which are, in this case, more

10 appropriately dealt with -- more appropriately addressed at the time of

11 the witness' testimony. There remains a possibility that some or all of

12 the problems raised by the Defence may be resolved at the time Witness 28

13 appears before the Chamber.

14 Furthermore, most of the Defence objections to Witness 28's

15 testimony relate only to some parts of the witness' proposed evidence, and

16 there are other parts of it that are not challenged. It is for these

17 reasons that the Chamber decided to grant the Prosecution's request to

18 subpoena Witness 28.

19 Finally, we note that similar objections raised by the Defence in

20 relation to the subpoena are to be found in a partially undecided

21 application on behalf of Mr. Haradinaj pursuant to Rule 89(D), filed on

22 the 5th of March, 2007, to exclude the evidence of Witness 28.

23 In light of the foregoing comments on the issuance of the

24 subpoena, exclusion of the proposed evidence before hearing Witness 28

25 would be premature, and therefore the undecided part of the March motion

1 relating to Witness 28 is denied.

2 This concludes the Chamber's decision on these two matters.

3 Then I'd like to give a statement on scheduling.

4 The Chamber would like to inform the parties of the non-sitting

5 days during the coming weeks. This will assist the parties in planning

6 their time for the remainder of the Prosecution's case.

7 We will continue to sit four days a week with Fridays as

8 non-sitting days. Due to an unavailability of interpreters, we will also

9 not be sitting on Monday, the 27th of August. Furthermore, we will not be

10 sitting the week starting the 24th of September.

11 Finally, as a reminder, the 12th and 24th of October are UN

12 holidays which, of course, means that we will not be sitting those days.

13 This concludes the Chamber's statement on scheduling.

14 If there's no other urgent matter to be raised at this moment, I'd

15 like to invite Madam Usher to escort the witness, Professor Dunjic, into

16 the courtroom.

17 [The witness entered court].

18 JUDGE ORIE: Good afternoon, Professor Dunjic. I'd like to remind

19 you that you're still bound by the solemn declaration you've given at the

20 beginning of your testimony already prior to the recess, prior to the

21 summer recess.

22 Mr. Dutertre, are you ready to re-examine Professor Dunjic? Then

23 please proceed.

24 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

25 WITNESS: DUSAN DUNJIC [Resumed]

1 [Witness answered through interpreter]

2 Re-examination by Mr. Dutertre:

3 Q. [Interpretation] Professor Dunjic, good afternoon. I'd like to

4 show you the video again, a video which is dated the 9th of September,

5 1998. Given that we have an issue over the date, I think this is rather

6 to do with the 8th of September, 1998. This video is Exhibit number P72.

7 I would like to start showing the video at 5:46, and we shall finish off

8 at 6:18. We can see both bodies floating in the concrete part of the

9 canal.

10 MR. DUTERTRE: [Interpretation] Can we show the video, please.

11 [Videotape played].

12 MR. DUTERTRE: [Interpretation] Thank you. Could we have this

13 picture on the screen, please.

14 Q. Professor, can you confirm that the top part of the body is

15 covered in a red-coloured shirt?

16 A. I don't have the picture.

17 Q. We are showing the video again. Can you confirm that the top part

18 of the body is covered in a red-coloured shirt?

19 A. That's what it looks like.

20 Q. Can you confirm that there is something on the body's head, some

21 material?

22 A. It looks as if at the back of the head there's a material or a

23 part of tissue is something that I really cannot identify on this video.

24 Q. Thank you. On pages 7227 and 7228 of the transcript, Mr. Emmerson

25 quoted a part of the testimony of Zarko Bajcetic:

1 "[In English] It has to be stressed that the two bodies which can

2 be seen on the video footage recorded on the 8th of September cannot be

3 seen any more on the video footage made on the 9th and 10th. One of the

4 bodies is wearing a red shirt and the second one is wearing a blue one.

5 The reason why those two bodies cannot be seen anymore on these dates,

6 because the rain on the 8th of September caused the water to sweep both

7 bodies downstream."

8 [Interpretation] Having recalled this, Professor, I would like to

9 show you the video which was shot on the 12th of September, 1998, in the

10 second half of the afternoon, around 20 to 5.00.

11 MR. DUTERTRE: [Interpretation] This video is Exhibit number P452.

12 The ERN number is VOOO-6012. I would like to show the part which starts

13 at 14:11 and finishes off at 15:02.

14 [Videotape played]

15 MR. DUTERTRE: [Interpretation] It's 15:30. That's my mistake, I'm

16 sorry.

17 JUDGE ORIE: Mr. Dutertre, apart from that, whether it was a

18 translation error or a slip of the tongue, I take it that you wanted to

19 refer to a video shot at the 12th of September rather than on the 20th.

20 MR. DUTERTRE: [Interpretation] I had mentioned the 12th of

21 September, Your Honour, but I did make a mistake in the time clock.

22 MR. GUY-SMITH: I would ask for purposes of clarification, because

23 I'm assuming that Mr. Dutertre is going to ask questions concerning either

24 the condition of the body or the colour of clothing, whether or not this

25 testimony is being sought as fact witness testimony or expert witness

1 testimony, because if it's being sought as fact witness testimony, I would

2 be interposing an objection.

3 JUDGE ORIE: I do understand your objection already. At the same

4 time, Mr. Guy-Smith, facts and opinion given by an expert usually are

5 intertwined in one way or the another, so let's first wait and see what

6 the questions are. But I do understand --

7 MR. GUY-SMITH: Very well. There's been no foundation laid, then,

8 with regard to a particular form of expertise. It may be attempted to be

9 adduced. I'm sure the Chamber appreciates my concern.

10 JUDGE ORIE: I appreciate your concerns. Let's first hear what

11 the questions are.

12 MR. DUTERTRE: [Interpretation].

13 Q. Yes, Professor, this is my first question: At the beginning of

14 the video we hear somebody saying: " ... In the best condition," and then

15 at the end of the video [In English]" ... a corpulent person there is

16 something thrown over its head."

17 [Interpretation] I'm fully aware of the fact that this is not a

18 top quality picture; but what do you think there is in the middle of the

19 canyon, at the bottom of the canyon here, in the middle of the picture

20 which you have in front of you?

21 JUDGE ORIE: Yes, Mr. Guy-Smith.

22 MR. GUY-SMITH: I interpose the same objection.

23 JUDGE ORIE: Yes.

24 Mr. Dutertre, what one sees is -- of course, the Chamber can see

25 what is on the video, and colours can be seen by both experts and

1 laypeople. So the only thing that -- it might be that on the basis of the

2 experience of Professor Dunjic that he sees more than we can see.

3 Sometimes if I look at an x-ray, I can't see what a doctor sees. So,

4 therefore, there's no objection to your question, but would you please

5 invite Professor Dunjic to explain how his special skills enable him to

6 see more than we see. If he sees anything more, the problem, of course,

7 is that Professor Dunjic doesn't know what we see. So let him explain

8 what he sees and then the Chamber will consider whether he sees more than

9 we see, and then we'll ask for an explanation on what makes him see more

10 than we see.

11 Mr. Emmerson.

12 MR. EMMERSON: Yes. I'm simply anxious that if this exercise is

13 to be done with the suggestion that what we're looking at is the

14 photograph that one -- the individual in the photograph that one sees in

15 D43 or in the videotape, that Professor Dunjic be at the same time then

16 invited to compare it to the photographs in situ of the two bodies that he

17 has identified as being potential candidates for that.

18 JUDGE ORIE: Is this one of them? I have difficulties in knowing

19 exactly now what we're looking at.

20 MR. EMMERSON: No. As I understand it from the line of

21 questioning that Mr. Dutertre has been pursuing in respect of the former

22 piece of video and this piece, he is inviting Professor Dunjic to make

23 comparisons between --

24 JUDGE ORIE: His findings and what he sees.

25 MR. EMMERSON: -- between what was seen in the first set -- the

1 first excerpt of the video, that is to say, the body floating with the red

2 hood on, and this piece of video. But the professor has already testified

3 as to the two potential candidates for the individual in the red hood and

4 we have photographs of those remains found in situ in the blue file.

5 JUDGE ORIE: Mr. Dutertre, does this give you sufficient guidance?

6 Because until now the comparison led us in, I think it was, one or two

7 cases where the professor said, I do -- I still do not exclude for the

8 possibility that this is the same person as we saw -- as the floating

9 bodies. Adding a third or fourth candidate, of course, I don't know

10 whether it brings much. But please proceed and keep in mind that the

11 whole exercise until now, and I think from both parties, cannot go any

12 further than saying that we cannot exclude, which is something quite

13 different from positively establishing that these are the same bodies.

14 Please proceed.

15 MR. DUTERTRE: [Interpretation] Yes, Your Honour. To my mind, this

16 body had not been discussed, but we will see.

17 Q. This is what the cameraman says and the person that is

18 accompanying him, a body wearing something red. It's a bit difficult for

19 you to answer because the quality of this picture is not very good, but

20 overall can you tell us whether the way -- what I mean is what this body

21 looks like, the degree of decomposition and the amount of flesh, is this

22 consistent with the quantity of flesh and the degree of decomposition

23 consistent with the body we saw wearing a red shirt in the canal.

24 JUDGE ORIE: Professor Dunjic, I'd like to split up that question.

25 The first one being whether the picture you see is clear enough to form

1 an opinion about the presence of soft tissue on this remains. And then

2 the second question would be, if you can form an opinion about it, to

3 describe it and compare it with what we saw of the two bodies floating in

4 the concrete portion of the -- of the river. So would you please follow

5 that order in answering the question put to you by Mr. Dutertre.

6 THE WITNESS: [Interpretation] Yes, Your Honour. The quality of

7 the photograph, or, rather, this video, is quite unclear. I can confirm

8 that this is a human body because one can note an extremity, the upper

9 extremity, the head, the trunk, and two legs. The position of the body

10 is, to me, unclear. I'm not sure whether the body's on the side, as it

11 might be judging by the legs, and the upper part of the body seems to be

12 leaning on a stone.

13 Furthermore, one can see some light red and dark red. This could

14 be clothing of that colour, but I can't ascertain that because this also

15 could be decomposition and putrefaction changes of the skin.

16 Thirdly, I cannot judge the degree of putrefaction on the basis of

17 this photograph. If I were to compare this with the previous photograph

18 made on the 9th of September in the canal, one cannot exclude the

19 possibility because of the red colour that we see here and that we see on

20 the photograph. But there's no other conclusions I can make on the basis

21 of this clip. But it is certainly a human body.

22 JUDGE ORIE: Mr. Dutertre, please proceed.

23 MR. DUTERTRE: [Interpretation]

24 Q. Yes, Professor, on page 7234 of the transcript, you said that

25 there was no discovery of the bodies because there had been too much rain.

1 I would like to show you the video which is dated the 13th of September,

2 of the next day -- which was shot on the day, following the day we've just

3 seen. ERN number VOOO-6012. More specifically I would like to show the

4 part which starts at 19:11 and finishing at 20:30. Interpreter's note:

5 transcript lines 20 to 23. That between the 13th and the 14th, there had

6 been no discovery of the bodies.

7 [Videotape played]

8 MR. DUTERTRE: [Interpretation] I'll stop there. I had mentioned

9 the fact that this was Exhibit number P452.

10 Q. Professor, this is my question. This video shows the current in

11 the concrete part of the canal. On the 13th of September, 1998, according

12 to you, what impact would this current have had on the 13th and the 14th,

13 when there was no discovery of bodies, on bodies that still had softer

14 tissues on them in the bottom of the canyon and that had not been blocked

15 by any stones or caught in any foliage?

16 A. This quantity of water and the speed with which the natural canal

17 was being filled with water in the direction of the Radoniq Canal would

18 certainly have moved the bodies that were unattached downstream,

19 significantly downstream. And the soft tissues which are putrefied

20 already would become even more subject to putrefaction and decomposition.

21 And at the same time the bodies which are being moved or which are hitting

22 a hard surface may suffer certain injuries, fractures and the like.

23 Q. Thank you. Do you think that these bodies I have described with

24 some soft tissue that have not been blocked by any stones or caught up in

25 the foliage could have been carried into the lake -- could have drifted

1 into the lake?

2 JUDGE ORIE: Mr. Emmerson.

3 MR. EMMERSON: That is not a question which falls within this

4 witness' expertise. If I could direct the Trial Chamber's attention to

5 the reports that have been provided by the diving teams in this respect,

6 and they are in the yellow binder, I think at tab 16. The matter is dealt

7 with fully and it's dealt with by reference to those who examined the

8 possibility that Mr. Dutertre is putting and excluded it.

9 Would Your Honour just give me one moment. It should be 16 -- in

10 the English, 16B --

11 JUDGE ORIE: I've got a problem. We were told to bring the light

12 grey binder, so -- yes, thank you.

13 MR. DUTERTRE: [Interpretation] Your Honour, I shall withdraw this

14 question to gain time, given that we do have time constraints. I shall

15 move on to another question.

16 Q. Professor --

17 MR. EMMERSON: Just to make the position absolutely clear, since

18 the issue has been floated, there are two expert diving reports which

19 exclude the possibility that any of these remains could have been washed

20 into the lake.

21 JUDGE ORIE: Let me just have a look. That is 16A, 16B --

22 MR. EMMERSON: 16C and 16D.

23 JUDGE ORIE: I'm just looking at it.

24 MR. EMMERSON: 16 --

25 JUDGE ORIE: Because 16A and B is about the 12th of September, so

1 it could not have fully explained what happened on the 13th. But I'm now

2 looking at 16D --

3 MR. EMMERSON: Yes.

4 JUDGE ORIE: -- Which is of the 16th of September, yes, and there

5 are references made to heavy rainfalls.

6 MR. EMMERSON: In the prepenultimate paragraph, after describing

7 the rainfall, the team concluded that all the bodies found and any bodies

8 that had made their way to the canal bed, either concrete or non-concrete

9 part, under any type of circumstance could not have been carried into the

10 lake regardless of the strength of the water current.

11 JUDGE ORIE: Yes. Now, you consider the lieutenant who wrote that

12 report to be more of an expert as someone who has often --

13 MR. EMMERSON: Well, more to the point, he is leading the diving

14 team and is examining the delta upon which he bases that conclusion. This

15 witness hasn't been anywhere near that area.

16 JUDGE ORIE: Yes. So both might have their flaws in forming an

17 opinion on the matter. Let's not discuss it at this moment because Mr.

18 Dutertre has withdrawn the question. Let's proceed.

19 Mr. Dutertre, let's proceed.

20 MR. DUTERTRE: [Interpretation] Yes, I'm grateful to Mr. Emmerson

21 to have relied on the forensic reports with such accuracy, and I believe

22 that Professor Dunjic does have some knowledge as regards the floating of

23 bodies.

24 Q. Now, the search is resumed on the 15th of September. Professor

25 Aleksandric told you about having found a body in the spot we saw on the

1 video, in other words, on the canal bed, and the cameraman were saying

2 about these bodies ...

3 MR. EMMERSON: I don't know what the B/C/S translation of that

4 question was like, but I think it's come out as an incomplete question.

5 MR. DUTERTRE: [Interpretation] I think it's been translated up

6 until the end.

7 Q. Now, when the searches resume on the 15th of September, did

8 Professor Aleksandric tell you about the fact that he had found -- a body

9 had been found in the spot that we see in the previous video in the canal

10 bed about which the cameramen had said. Did Professor Aleksandric talk to

11 you about having found a body?

12 JUDGE HOEPFEL: Mr. Dutertre, are you speaking about a day in

13 September or in December, when this search was resumed?

14 THE INTERPRETER: Interpreter's note: 15th of September was the

15 date that was quoted.

16 JUDGE HOEPFEL: Thank you.

17 THE WITNESS: [Interpretation] May I answer the question? Yes.

18 Colonel Aleksandric and myself discussed everything that was happening in

19 the canal and made notes about it in the form of this report.

20 MR. DUTERTRE: [Interpretation].

21 Q. I would now like to show you this same video, which is Exhibit

22 P452, VOO-6012, the part which starts at 18:10 and which finishes at

23 18:30. The date mentioned is that of the 13th of September.

24 [Videotape played]

25 THE INTERPRETER: Microphone, Mr. Dutertre, please.

1 MR. DUTERTRE: [Interpretation]

2 Q. We can clearly see cattle, a cow, floating in the concrete part of

3 the canal. Did you see any cattle when you went to the canal on the 11th

4 of September, where the bodies were lying along the canal?

5 A. Yes, I saw that in person. This was at the beginning, in the

6 narrowest part of the canal. There were some cattle both alive and dead,

7 mostly dead, mostly cows, that couldn't get out of the canal because the

8 sides were very steep and concrete so that they were trapped there and

9 they simply died.

10 Q. You can see on the picture, to the right-hand side, on the

11 left-hand side, we can see a wall which would prevent any cattle from

12 falling at this particular -- in that particular spot of the canal, which

13 is the concrete part of the canal. How can you explain that a cow could

14 have been found in this particular spot?

15 MR. GUY-SMITH: Once again, I interpose the same question with

16 regard to whether or not this is being offered as expert testimony or fact

17 testimony. We have had no information whatsoever that Professor Dunjic

18 has any expertise within the area of hydrology or the movement of water or

19 the speed of water or the effect of -- the effect of the movement of water

20 on any material that may be in a canal or slough or any other form.

21 JUDGE ORIE: Mr. Dunjic, before you answer this question, whether

22 you have any explanation of what is said to be a cow ending up at this

23 place, whether your field of expertise give you any skills, or whether on

24 the basis of your experience in your field of expertise you could come

25 with explanations for the positions of domestic animals in this place?

1 THE WITNESS: [Interpretation] Your Honour, I don't have any expert

2 knowledge in hydrology but I can explain it to you, because here on the

3 image we see the lower half of this concrete canal, and in the upper part

4 where I saw the animals while they were alive, that part is narrower, with

5 sides that are not straight and there's earth all around. There's a road

6 near that concrete canal. So they were able to walk down the canal but

7 they couldn't leave the canal because the slopes were slanting. And this

8 is 1 or 200 metres before that part, before what we can see on the image.

9 So that that explains how the water was coming from that area and that

10 everything in the canal was washed down towards the natural part of the

11 canal and Lake Radoniq.

12 JUDGE ORIE: What you'll do at this moment, Professor Dunjic, is

13 to testify about facts you observed personally; that is that higher up in

14 the canal, the situation was different from what we see here, where there

15 are concrete walls, and you apply, may I say, human logic on it rather

16 than your expertise --

17 THE WITNESS: [Interpretation] Yes.

18 JUDGE ORIE: -- The Chamber will consider whether it has the same

19 view or not.

20 MR. EMMERSON: I don't know whether Mr. Dutertre wants to pursue

21 this line of questioning, but the Chamber -- and I'm sure he will recall

22 that we have evidence from Faton Setah that a mass comparable to a human

23 body at Luka e Epreme at the start of the canal all the way down to the

24 delta section.

25 JUDGE ORIE: And you say that's not disputed.

1 MR. EMMERSON: That's certainly not disputed.

2 JUDGE ORIE: Mr. Dutertre, of course, now a human body is not the

3 same weight or the same size as a cow, but I think human bodies are to be

4 focused on rather than animals. Mr. Dutertre, you see, if this was what

5 you were aiming at, then Mr. Emmerson, and I do not see any other counsel

6 contradicting it, says that this is not in dispute.

7 MR. DUTERTRE: [Interpretation] Yes, I note that, Mr. President.

8 Knowing that on the Prosecution side it's not on the whole part of the

9 canal that it could move. The evidence given by Mr. Emmerson do not go

10 the same way as the Prosecution's.

11 Q. I'm now going to put to you another question which is about the

12 bodies' custody. Mr. Guy-Smith asked whether you had received documents

13 about the chain of custody concerning the bodies which were in the canal,

14 and my question is the following: Once the bodies had been taken, marked,

15 by the forensic team in the canal and taken to the trucks, during the

16 transportation of these bodies to the Pastrik Hotel, was there a member of

17 your team accompanying the bodies?

18 A. Yes. Dr. Jecmenica.

19 Q. Thank you. Still on page 7349, Mr. Guy-Smith asked you: [In

20 English]" ... Bodies or when you were finished with the bodies, there was

21 no chain of custody documentation that went along with those released, was

22 there?"

23 [Interpretation] My question is the following: Once the post

24 mortem was performed, the bodies remained with their markings?

25 A. Yes. And also at the same time, after the post mortem was

1 finished, the same markings and labels were placed in the bags that we

2 brought them in from the spot and they were transferred to wooden caskets

3 which were closed. They were closed in the prescribed manner, and on the

4 lid of these caskets there was the same labelling, the same markings for

5 the bodies that we used when we labelled them, when we carried out the

6 autopsy and photographs. And this was photographed, too. Then afterwards

7 the unidentified bodies were buried together in a single space in front of

8 the cemetery in Djakovica.

9 Q. Right. So to continue on your answer, were you yourself present

10 when the identified or non-identified bodies were sealed in the coffin

11 with the markings which were put on these coffins?

12 A. Yes, yes. We all controlled it and I did myself, too; that the

13 same labelling was placed on the coffin as was placed on the body itself.

14 And not only on the lid of the coffin, because the coffin was buried, but

15 the cross that is placed above ground in the place where the body and the

16 coffin is buried.

17 Q. Thank you. I want to come back to something else, another

18 subject, pages 17 through 30 of the transcript. You said you've seen

19 body, R-18, in September 1998. In your statement, 92 ter, concerning this

20 body, R-18, you indicate in paragraph 411 that there were animal bites

21 visible, and you also add that the body was only removed on the 12th. And

22 if I understand you rightly, and I'd like you to let me know about it,

23 between the 12th and the -- the 11th and the 12th of September, this body

24 was in open air, was left in open air?

25 A. Yes.

1 Q. Thank you. Therefore, the bite marks which you found could have

2 been inflicted between the 11th and the 12th of September, 1998? It can't

3 be excluded as an hypothesis, can it?

4 A. Yes, that's right. You can't exclude it.

5 Q. Thank you. Now, another topic linked to the decomposition.

6 Yesterday at page 7347, Mr. Guy-Smith asked you whether a body could be

7 skeletonised completely in a week. You answered inter alia that the body

8 of a little child could skeletonise in three or four days. My question is

9 the following: Professor, for an adult body, how much time is necessary

10 for it to be completely skeletonised?

11 A. It depends on the circumstances and conditions and the state the

12 body was in before, whether it was exposed to factors which accelerate

13 decomposition, and so forth. So there are very different intervals. A

14 body can be skeletonised at a very short space of time, for instance,

15 let's say, 15 days, if some of these factors contributing to

16 skeletonisation are very strong. Or three or four months and if you have

17 other circumstances and conditions you can have partial skeletonisation;

18 so it all depends. It's a wide range, especially when we're talking about

19 the exposed part of the body, the extremities, the face, et cetera, the

20 abdomen, and so on.

21 Q. Thank you very much. Another matter concerning post mortem

22 examinations and especially the hair which were examined at length by Mr.

23 Guy-Smith. Page 7275 you confirm that you didn't do any microscopic

24 examination of the hair found on the barbed wire, and my question is the

25 following: For what reason did you not examine with a microscope the hair

1 found when you were in Hotel Pastrik?

2 A. I have to stress something that I perhaps omitted to mention thus

3 far. We worked under highly specific conditions. When I say"specific" I

4 mean in the broader, narrower sense. In the broader sense for us, both on

5 the spot, on site, and at the hotel. We had difficult working conditions,

6 that is to say, we didn't have complete freedom of movement or

7 communication, and so on and so forth, because it was very dangerous to

8 move around without the security provided for us at the locality itself

9 and to move around the hotel, in fact.

10 On the other hand, in the hotel, or, rather, in the conditions we

11 were working in- it was the garage of the Pastrik Hotel - we had makeshift

12 conditions for on-site examinations. We couldn't even have a computer,

13 let alone a microscope or anything else to perform more detailed analyses.

14 Therefore, we concentrated on the basic autopsy findings; that is to

15 say, we wanted to establish the cause of death, first and foremost, and to

16 collect as many elements as possible in order to identify the bodies or

17 body.

18 Q. Thank you very much. I'm now passing to other topics. You just

19 mentioned identification. Precisely about identification, at page 7336

20 and 7337, Mr. Emmerson asked you questions about body R-3 in paragraph 236

21 of your interview, 92 ter. I will repeat that. Body R-3 was first

22 identified by you as being the body of Adzija Seferaj and then as being

23 Misin Berisha. In paragraph 226, you indicate there was a number of

24 persons of family Berisha at Batajnica 1 and 2.

25 My question is the following, Professor: Could you tell us that

1 all the persons having the name Berisha in 1998 belonged to the same

2 family and are related by blood?

3 A. I really don't know. I can't say. It's a large family bearing

4 the same surname. Now, whether they're all related, I really can't say.

5 I don't know.

6 Q. Thank you very much. Page 7353 of the transcript, Mr. Guy-Smith

7 asked you whether in Madrid Dr. Alonso had told you about the fact that

8 the samples for DNA analysis on the bodies at Hotel Pastrik had been

9 putrefied, and completely putrefied possibly, rotten. I thought that the

10 DNA results had not been contested by agreement between the parties. Is

11 it absolutely excluded to get DNA with the means of science today, is it

12 excluded that it's possible to take DNA samples when there is total

13 putrification?

14 A. I have to give you a more complex answer to that question. When

15 we took the samples, they had already been changed through putrification

16 on site. Putrification had already set in in the locality. And as they

17 were almost -- had spent almost two years in a fridge, there were

18 additional putrification changes. We stored them that way.

19 Now, when we took them to Madrid, we observed ourselves, and

20 Mr. Alonso also said it would be very difficult. We realised that

21 ourselves.

22 Now, in answer to your question, what I can say is this: There is

23 an organisation that helped us in the process of identification, the ICMP,

24 and that organisation had the same problems with identification and

25 establishing the DNA profile with putrefied, exhumed bones. There are

1 certain procedures which I'm not very well-versed in, but they're used

2 today in order to identify the DNA profile with such very much changed,

3 contaminated samples, where a DNA profile is required.

4 Q. Thank you. Thank you, Professor. I have two short questions to

5 ask now concerning the identification of R-15 identified by you as being

6 Milovan Vlahovic. Mr. Emmerson asked you about the information given by

7 Rade Vlahovic. My question is the following: Did you personally speak to

8 the person called Milovan Vlahovic, who is another relative of this

9 person? The name was Milovan Vlahovic.

10 A. From this you can see that I personally talked to Rade Vlahovic,

11 who is the son, who reported the disappearance of his father Milan and

12 Milka, his mother, nee Markovic. On the 19th of April, this was reported.

13 They were last seen in 1998. And we conducted the interviews.

14 Now, as to this Mr. Vlahovic, that is the piece of information

15 about the callus on the rib, the scar on the rib.

16 Q. Very well. And for Milovan Vlahovic, you remember having spoken

17 to this person who was a relative of Milovan Vlahovic?

18 A. Rade Vlahovic was born in 1967, it says here. He worked in the

19 MUP of Djakovica. Somebody asked me about that yesterday, unless I'm very

20 much mistaken. So he was an employee of the police force. But no, I

21 haven't got any more notes as to which other relatives were there.

22 Q. Thank you. Last question.

23 MR. DUTERTRE: [Interpretation] Could we play video P452, ERN 603,

24 26 of September, 1998, 6:50 to 7:06, and that will be my last topic.

25 P452.

1 [Videotape played]

2 THE INTERPRETER: [Voiceover] This is Jeco's, what we're working on

3 now. He's missing this one. Do we have one of those big bags because

4 I ...

5 MR. DUTERTRE: [Interpretation]

6 Q. Professor, my question is: What is it about this video --

7 JUDGE ORIE: Sorry, we have no French translation. The French

8 wasn't being translated. If French interpreters could look at, because

9 what has been said and what appears at the bottom of the video image, so

10 if this is again played and translated into French in order to have a

11 complete record.

12 [Videotape played]

13 THE INTERPRETER: [Voiceover] This is Jeco's, this what we're

14 working on now. He's missing this one. Do we have one of those big bags

15 because I ... Yes, yes, we have for sure. This part.

16 JUDGE ORIE: Could it be played again? I understand that the

17 French interpreters are trying to do their utmost best, too. Let's play

18 it once again.

19 [Videotape played]

20 THE INTERPRETER: [Voiceover] This is Jeco's, this what we're

21 working on now, he's missing this one. Do we have one of those big bags

22 because I ... Yes, yes, we have for sure. This part. Part?

23 JUDGE ORIE: Please proceed.

24 THE INTERPRETER: [Voiceover] And now write it like this.

25 MR. DUTERTRE: [Interpretation] Thank you, Mr. President.

1 Q. Professor Dunjic, could you tell us what this is about, this

2 video?

3 A. Yes. This is the second part of the body which was labelled as

4 RS-7, and they are in fact the two bodies that were found -- well, they

5 found one-half first, the police found the first half, and as the second

6 half was missing and I wanted to see the locality where the bodies were

7 found because we weren't present there on the 20-something of September

8 when we arrived for the second time to Djakovica, then with the

9 investigating judge we went on site for him to show us where R-2, R-3,

10 R-4, and R-5, the bodies labelled like that were found. And as the part

11 of the body was missing, I walked around the area and quite by chance in

12 some high grass, across some water, I happened to spy this body which was

13 most probably taken off, dragged off, across the water by some larger

14 animals, from the larger part of the body they had found initially.

15 MR. DUTERTRE: [Interpretation] I can see on the transcript that is

16 R-2, R-3. I thought it Re-2, -3, -4.

17 Q. Professor, do we --

18 A. Yes, that's right.

19 JUDGE ORIE: The Chamber noticed that as well.

20 MR. DUTERTRE: [Interpretation]

21 Q. Professor, my last question: Should I understand that for that at

22 least a part of the removal of the bodies Re-2 to -6, you were present?

23 A. No. I was on location when this part of the body was found. Now,

24 all the bodies labelled Re-2, -3, -4, -5, were found by policemen. After

25 our departure from Djakovica and they provided security to

1 President Milutinovic when he went to the canal to lay the flowers, the

2 wreath of flowers where the bodies were found, and as they moved around

3 this area, this broad area, they came across these bodies that were hidden

4 in the bushes. And then the judge, Judge Gojkovic called us to come the

5 very next day. So this took place on the second day of our arrival; not

6 the first day of our arrival, but the second day, when we found that

7 portion of the body we just saw.

8 Q. My question wasn't clear. Were you present, Professor, at least

9 when this part of the body was removed, Re-6?

10 MR. EMMERSON: I'm very sorry, but it may be --

11 THE WITNESS: [Interpretation] Yes, yes, and you can see that on

12 the picture, too.

13 MR. EMMERSON: There's a considerable degree of confusion creeping

14 in as far as numbering is concern, because as I understand it, the

15 witness' evidence in his 92 ter statement is that he was present when Re-7

16 was found, which is a body part, DNA-linked to Re-5, that had been found

17 and recovered before, but that he was not present when Re-2, Re-3, Re-4,

18 Re-5, or Re-6 were found and removed from the scene.

19 JUDGE ORIE: Mr. Dunjic, Mr. Emmerson explained that the discovery

20 of a part of a body linked to numbers Re-7 and Re-5, rather than any other

21 number, were dealt with in this video footage. Is that your recollection

22 as well?

23 THE WITNESS: [Interpretation] Not only do I recollect it, but

24 that's what was recorded. So this part of the body, Your Honour, is the

25 part that I found the day after my arrival. All the others, Re-2,

1 Re-3, -4, -5, and -6, were found by the police and transferred to

2 Djakovica to be dealt with. So when we arrived in Djakovica once again,

3 those bodies were waiting for us over there. But I wanted to see where --

4 the location where they were found. And when we went on the following

5 day, we found this part of the body that was incorporated into the Re-5

6 body, so we managed to link up the two.

7 JUDGE ORIE: This has been clarified. Thank you.

8 Mr. Dutertre.

9 MR. DUTERTRE: [Interpretation] I have no other questions,

10 Mr. President.

11 JUDGE ORIE: Any other need to --

12 MR. EMMERSON: I just wanted to clarify one matter, if I might.

13 At page 20, line 4, Mr. Dutertre asked some questions of Professor Dunjic

14 in respect of paragraph 226 of his 92 ter statement as to whether the

15 Berishas he's referring to in that paragraph as having been removed from

16 Batajnica 1 and 2 were members of the same family. I don't know if that's

17 a matter of importance to deal with with the witness. But if it is,

18 Your Honours have the grey file, which includes the details in the first

19 tab of the Milutinovic indictment, and at 75(D), that is, paragraph 75,

20 subparagraph (D), there is recorded there the allegation of a mass killing

21 on the 26th of March of members of one family, the Berisha family, when

22 Serbian forces attacked the Berisha family compound and later threw

23 explosives into a cafe where individuals had been sheltering. And there

24 was a list at schedule D to the indictment of the Berisha family members

25 who met their deaths in that way, which included those recovered by

1 Professor Dunjic at Batajnicas 1 and 2.

2 JUDGE ORIE: Mr. Dutertre, is there any dispute about what

3 Mr. Emmerson just said?

4 MR. DUTERTRE: [Interpretation] No. What I think is not contested

5 is the results of the genetic tests, so I was surprised that the question

6 would be discussed, this question of Berisha family and of the genetic

7 tests at paragraph 226 of the 92 ter statement. This was talked about by

8 Mr. Emmerson yesterday and I wanted to cover the question, but I thought

9 there was no problem because of the agreement about the identifications.

10 JUDGE ORIE: I think, as a matter of fact, that when questions

11 were put to the witness about putrefied and -- putrefied samples and

12 contamination, that it was primarily to establish that methods used were

13 not solid, were not precise enough, rather than to contest the outcome of

14 DNA analysis. Is that correctly understood? And I'm looking to you,

15 Mr. Guy-Smith.

16 MR. GUY-SMITH: It's correctly understood up to a point. Based

17 upon the last information that we received shortly before the break

18 concerning two specific bodies which, as I understand, were examined by

19 the same laboratories using the same fashion, a couple of questions have

20 now come up with regard to issues concerning DNA identification that

21 beforehand had seemingly been resolved or were close to resolution. As a

22 result of what happened with these -- the results that we received, and

23 it's actually more than the results, what we finally received were, among

24 other things, the electroferrogram, which indicated a number of what I

25 would call anomalies, and I won't take it any further than that at this

1 point, but a number of anomalies that require further inquiry before - at

2 least as far as the Balaj team is concerned - we can easily agree to DNA

3 results. They have to be satisfied.

4 We are in the process, as hurriedly as we can, of taking care of

5 that issue, and as a matter of fact over the break, it's one of the things

6 that I was attending to. I, unfortunately, am not a scientist so I was

7 dealing with those who were and taking my instructions from them. But for

8 the fact that we'd received the information with regard to specific bodies

9 and that's R-1 and R-12 and specifically the notes, the information that

10 formed the basis of the ultimate conclusions, we would have been in a

11 different position. But fortunately, the Prosecution gave us information

12 which we can look at and have an intelligent appraisal of.

13 JUDGE ORIE: That's good. Is there any further need --

14 Mr. Guy-Smith, do I understand you well that you'd like the witness to

15 remain available until after the break? Is Professor Dunjic to remain

16 available?

17 MR. GUY-SMITH: No. At this point, with regard to issues

18 concerning conclusions with regard to -- with regard to DNA, I believe

19 that Professor Dunjic has given us all of the assistance that he can in

20 that regard because we do know that the samples taken, and for whatever

21 reasons they were contaminated and putrefied, is really of no other moment

22 than how that would ultimately affect the results, conclusions, with

23 regard to DNA. So I have no further questions with regard to that issue

24 with this witness.

25 JUDGE ORIE: Yes. And on any other issue at this moment? Because

1 Mr. Emmerson put some -- no, he even did not put questions to the witness.

2 Any further need?

3 MR. GUY-SMITH: No.

4 JUDGE ORIE: Mr. Harvey?

5 MR. HARVEY: Not on our behalf either, Mr. President.

6 JUDGE ORIE: Then Mr. Dutertre.

7 MR. DUTERTRE: [Interpretation] Just to be complete, briefly, I

8 think from R-1 to R-12 are distinct from the matter of the samples which

9 were putrefied and for the bodies in general, the DNA analysis or tests

10 have not exactly the figure. But it's not only samples. There were

11 several samples made on the same bodies, several parts of the body which

12 were used. Therefore, this question of putrefaction of samples was not so

13 fundamental as the Defence claims.

14 JUDGE ORIE: Let's not start commenting in the presence of a

15 witness whether questions put to him were fundamental, yes or not. I do

16 understand that there are no further questions to Professor Dunjic. I

17 also understand that there's another matter about DNA analysis which is

18 still discussed between the parties. And if that discussion leads to

19 anything the Chamber should know, we'll hear about that.

20 MR. GUY-SMITH: And I'm hoping for resolution.

21 JUDGE ORIE: Yes, of course. What I would like to do, as a matter

22 of fact, and although we're not necessarily need you for that,

23 Professor Dunjic, perhaps you'd stay for a second because if there would

24 be any confusion. Have the parties meanwhile received a list of exhibits

25 introduced, most of them as annexes to the -- to the 92 ter -- redacted 92

1 ter statement of Professor Dunjic? The redacted statement is P618. And I

2 have on my list sequentially numbered from P619 up to and including P817

3 which, if I'm not mistaken, are all annexes to the report of

4 Professor Dunjic. Also sequential numbering although sometimes, for

5 example, 53 is followed by 53 bis rather than directly by 54. Are there

6 any objections against any of the annexes, the annexes listed and

7 described on this list, I hope the Prosecution -- the Defence has

8 received.

9 MR. GUY-SMITH: At the present moment, based upon the concerns

10 previously voiced, there are a number of annexes which deal specifically

11 with DNA reports. They are proposed exhibit numbers 746 --

12 JUDGE ORIE: 746.

13 MR. GUY-SMITH: 763.

14 JUDGE ORIE: 763.

15 MR. GUY-SMITH: 774, 779, and 815. I'm double-checking to make

16 sure that's all of them, and I believe that is. And all of those are DNA

17 report conclusions.

18 JUDGE ORIE: Yes. And do you object against admission of these

19 documents?

20 MR. GUY-SMITH: At this -- at this moment I do. If, after I've

21 had a conversation with Mr. Dutertre and we can more fully discuss it,

22 there may be a point where what we end up doing is withdraw the objection

23 and make other arguments with regard to those specific reports. But that

24 is something that can be handled relatively quickly, hopefully by the end

25 of today's proceedings, at least to give the Chamber an indication of what

1 our ultimate position may be.

2 JUDGE ORIE: Yes. So for the time being, any other objections?

3 Then P618 -- yes, Mr. Dutertre.

4 MR. DUTERTRE: [Interpretation] Your Honour, very briefly. I shall

5 look into this as quickly as possible with Mr. Guy-Smith. I wanted to

6 draw the Chamber's attention on the following fact: Some parts of the 92

7 ter statement and some of the annexes should perhaps be confidential.

8 Yesterday we moved into private session because of a witness' name that

9 could have potentially been uttered, so I shall try to identify as quickly

10 as possible those exhibits that should be filed confidentially. ICMP, as

11 a general rule, has in any case asked for all its reports to remain

12 confidential. I forgot to mention this at the outset, but I hope it's

13 never too late.

14 JUDGE ORIE: What we'll then do is we'll give a decision on

15 admission into evidence of those exhibits not objected to and --

16 provisionally all under seal, and you, Mr. Dutertre, are invited to,

17 within 24 hours -- within 48 hours, to provide a list on which you

18 indicate which of these exhibits should remain under seal and we'll then

19 decide that the others will be public. That means that --

20 MR. EMMERSON: May I just add one comment whilst we're discussing

21 the 92 ter statement itself. There is a single sentence in the redacted

22 statement which I think has been left in in error, because the substance

23 of the information to which it then refers has been redacted. Now, I'm

24 happy to discuss it with Mr. Dutertre outside court and to come to the

25 Trial Chamber with an agreed position rather than taking time up now.

1 JUDGE ORIE: It's redaction rather than protection.

2 MR. EMMERSON: It's redaction rather than protection.

3 JUDGE ORIE: Then I think we can proceed and we still could invite

4 Mr. Dutertre, if a mistake has been made, to replace that one page by

5 another page. But I'd like to proceed with the matter. Otherwise, our

6 lists are getting longer and longer.

7 That means that P618 up to and including P745 are admitted into

8 evidence, provisionally under seal; that no decision -- that not admitted

9 yet is P746; then P747 up to and including P762 are admitted into

10 evidence, under seal provisionally; that not yet admitted is P763, so that

11 remains marked for identification; then P764 up to and including P773 are

12 admitted into evidence provisionally under seal; P774 remains marked for

13 identification, no decision on admission yet been made; P775 up to and

14 including P778 are admitted into evidence, provisionally under seal

15 awaiting the list of Mr. Dutertre; P779 marked for identification are not

16 admitted at this moment; P780, up to and including P814 is admitted into

17 evidence, as said before, provisionally under seal; P815 remains marked

18 for identification, no decision on admission yet made; P816 and P817 are

19 admitted into evidence.

20 Then, Professor Dunjic, after this exercise in administration,

21 rather, but there are no further problems, it seems, this -- your

22 testimony has been concluded by now. I'd like to thank you very much

23 for -- not only for coming in July but also returning to us in August,

24 completing your evidence, and I wish you a safe trip home again.

25 THE WITNESS: [Interpretation] Thank you.

1 JUDGE ORIE: We will have a break until 10 minutes past 4.00.

2 --- Recess taken at 3.43 p.m.

3 --- On resuming at 4.21 p.m.

4 JUDGE ORIE: Could we turn for a moment into private session.

5 [Private session]

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9 [Open session]

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

11 JUDGE ORIE: Thank you, Madam Registrar.

12 In respect of the witness which is now before the Chamber, at an

13 earlier stage protective measures were granted. The Chamber was informed

14 by the witness, that's you, Mr. Fazliu, that you do not wish any

15 protective measures to be applied and therefore the Chamber has decided to

16 lift the protective measures and proceed on that basis.

17 Mr. Fazliu, now, before you give testimony, the Rules of Procedure

18 and Evidence require you to make a solemn declaration that you'll speak

19 the truth, the whole truth, and nothing but the truth. May I ask you to

20 stand and Madam Usher will hand out to you the text of the solemn

21 declaration. May I invite you to make that solemn declaration.

22 THE WITNESS: [Interpretation] I will read the text I was given.

23 I solemnly declare that I will speak the truth, the whole truth,

24 and nothing but the truth.

25 WITNESS: FADIL FAZLIU

1 [Witness answered through interpreter]

2 JUDGE ORIE: Thank you, Mr. Fazliu.

3 Mr. Fazliu, you will first be examined by Mr. Di Fazio, who is

4 counsel for the Prosecution.

5 Mr. Di Fazio.

6 MR. DI FAZIO: Thank you, Your Honour.

7 Examination by Mr. Di Fazio:

8 Q. Mr. Fazliu, can you just confirm those details for me? You were

9 born in Grabanica, Kline municipality on the 24th of September, 1961.

10 You're married, you have three children. Are those details correct?

11 A. Yes.

12 Q. You graduated from the University of Djakovica, and between 1985

13 and 1994 you worked as a schoolteacher in the school in Grabanica; is that

14 correct?

15 A. Yes, that's correct.

16 Q. And in 1994 you became the director of that school and you

17 remained director of that school until at least May of 1998.

18 A. Yes, that's correct.

19 Q. You're a member of the LDK and you are still, as we speak, in the

20 LDK.

21 A. Yes, I am.

22 Q. In -- sorry, you are the LDK representative for a collection of

23 five villages, including Grabanica, Bokshiq, Qeskove, Kepuz, and Dollova;

24 is that correct?

25 A. I was in that capacity until the spring of this year, but now,

1 since I was elected member of the presidency of the LDK for Kline, someone

2 else was appointed chairman of this branch covering the five branches.

3 Q. Thank you. And in 1998, in particular in May of 1998, did you --

4 were you chairman of those branches covering the five -- the five villages

5 or branches?

6 A. There was someone else. I was a member of the presidency of the

7 subbranch responsible for five villages.

8 Q. In 1998 did the LDK enjoy considerable popularity in your village

9 of Grabanica?

10 A. Yes. It was almost the only party that was set up and that was

11 functioning, in addition to some small parties which had also seats in

12 parliament, like the party of Mr. Demachi was. The remainder were all

13 members of the LDK.

14 Q. So the vast majority of households supported the LDK.

15 A. In my village, I may say that each and every one supported the

16 LDK. But this was the case also in other villages, with the exception of

17 two families in Bokshiq which were represented in parliamentary parties.

18 Q. Did the LDK enjoy that sort of support in the other villages that

19 I mentioned to you earlier, Bokshiq, Dollova, and so on?

20 A. Yes, they did enjoy full support.

21 Q. And the fact of your village of Grabanica being an LDK stronghold,

22 was that well known in the wider area where you lived, in other words,

23 throughout Klina municipality?

24 A. Yes, until the situation deteriorated and violence started to be

25 used by the Serb forces, and then the KLA appeared.

1 Q. Thank you for that. But my question was this: Did other villages

2 in your area, in your wider area, and I'm talking about Klina

3 municipality, know that Grabanica and the people who came from Grabanica

4 were LDK supporters?

5 A. Yes, certainly they did, because we were engaged in activities in

6 all the villages of the Kline municipality, and we had the same programme

7 all over these places.

8 Q. Thank you. Thanks. In your village of Grabanica, was there a

9 village guard in existence?

10 A. The village guard started to be organised in 1990, from the 3rd

11 September strike when the Albanian workers went on a strike on the 3rd of

12 September, organised by Mr. Hajrullah Gorani who was the leader of the

13 trade unions. From that time onwards, we organised a guard in the

14 village. But I think the other villages too had their village guards. In

15 Dollova, the situation was more problematic because the village was mixed

16 up. There were also Serbs there.

17 Q. The village guard that you speak of in Grabanica - I'm really only

18 interested in Grabanica - that continued in existence up until May of

19 1998?

20 A. Yes.

21 Q. Was that village guard organised under the auspices, or organised

22 by, the LDK?

23 A. Yes, yes, by the LDK. We were organised from the central level up

24 to the grassroots. We had Anton Kola, the member of the presidency,

25 representing Kosova, and we received all instructions from this person

1 until 1992 or 1993, when he was forced to flee Kosova because of the fear

2 of being arrested by the Serb forces after he was imprisoned.

3 Q. Now, earlier you mentioned the KLA. When did you first become

4 aware of the existence of the KLA?

5 A. First we heard of it in groups and then at the meetings we had on

6 a level of branch or subbranches. But for the first time it was in 1997,

7 in Laushe, I think. After that there was no dilemma for anyone about its

8 existence.

9 Q. Thank you. And when you say you heard about it for the first time

10 in 1997 in Laushe, what was your source of information? Was it personal

11 intelligence or information that you had or was that something you learnt

12 of through the media or other sources?

13 A. We discussed these things in our group, but something that we

14 heard on television and in the media. After that we were certain about

15 its existence.

16 Q. And when you say, "we discussed these things in our group," are

17 you referring to your LDK party in Grabanica?

18 A. Yes. Every time we held a meeting we discussed this issue and we

19 had some kind of secret meetings in smaller groups. It was not that we

20 discussed it openly, in broad groups.

21 Q. Thank you. Did the KLA ever establish a presence in your village

22 of Grabanica?

23 A. Yes, certainly did.

24 Q. And can you tell the Trial Chamber, please, when that -- when that

25 occurred.

1 A. That occurred sometime in the first months of spring, maybe April

2 or May. It was then, when the first groups from the village went to

3 Albania for arms, to collect arms, in coordination with Jabllanice, with

4 the headquarters of Jabllanice.

5 Q. Okay. Let's just clarify something -- a few things from that

6 answer. You mean, I take it, April or May of 1998, first of all?

7 A. I may say that from some notes I had taken at the time, even

8 though most of them were burned and many years have passed and I may make

9 some mistakes about the exact dates, but I think you are right, it was

10 around that time.

11 Q. But I've got my year correct, haven't I, 1998, April or May?

12 A. Yes. Yes.

13 Q. Thanks. And you say that some groups went to Albania to collect

14 arms in accordance with the headquarters of Jablanica. Is that the KLA

15 headquarters of Jablanica?

16 A. Yes. That was the only staff or headquarters, that of KLA, which

17 was established in Jabllanice.

18 Q. And can you tell the Trial Chamber how the KLA headquarters in

19 Jablanica acted with these groups in -- just a minute. Allow me to finish

20 the question, please. Excuse me.

21 Can you tell the Trial Chamber how the KLA headquarters in

22 Jablanica acted with groups in your village in order to get arms in

23 Albania, how that came about.

24 A. The Jabllanice headquarters organised talks in different villages

25 to coordinate its work, and there were volunteers, young people who joined

1 these groups to go and get arms to protect -- mainly to protect their

2 villages.

3 Q. Did that occur in respect of Grabanica; namely, young people from

4 Grabanica working with the KLA to go and collect weapons?

5 A. Yes, in the surrounding villages as well, with the exception of

6 Dollova village that I mentioned earlier because of its position and the

7 existence of Serb families there, because there were over 20 Serb

8 policemen in Dollova.

9 Q. Were there any representatives of the KLA living in Grabanica in

10 April or May of 1998?

11 A. Yes. Yes, there were, and they were known by the village. They

12 were recognised. We knew as a village that we had Sadri Berisha, and it

13 was through his coordination that the first and the second groups went for

14 arms. In one of the groups was also my brother.

15 Q. Who appointed Sadri Berisha as KLA representative in Grabanica?

16 A. He was appointed by the KLA staff in Jabllanice in cooperation

17 with the village leadership.

18 Q. Was that the LDK village leadership?

19 A. At the time when the Serb violence started on the 13th of May,

20 with the attacks against Kepuz village and elsewhere, then it was

21 impossible for the party to engage in its activities and we organised our

22 activities in cooperation with the KLA. And there was a representative

23 from every family when it was agreed for Sadri to be responsible for

24 Grabanice, to be its representative.

25 Q. The agreement for Sadri to be responsible for Grabanica, was

1 that -- was that a decision taken by the villagers or was it a decision

2 taken by the LDK representatives in Grabanica?

3 A. It was a joint decision. As I said earlier, the LDK was in the

4 village and it, of course, gave its approval for this decision.

5 Q. And what was to be the role of the LDK village guard after this?

6 A. You mean the role of the village guard? In actual fact, all

7 guards were part of the protective -- protection force, but they were not

8 dressed in uniforms because at that time we didn't have uniforms. So from

9 the outside you couldn't tell them. But they were willing to join the

10 army and to defend the village.

11 Q. Now, what I want you to do is to explain to the Trial Chamber,

12 please, the role of the LDK organised village guard that had been in

13 existence since 1990 and continued in existence up until May of 1998.

14 What I want you to explain to the Trial Chamber is how that particular

15 institution continued to operate following the appointment of a KLA

16 representative. Who was in charge of it, in other words, the LDK or the

17 KLA? Do you know? Or both?

18 A. I already explained to you that from the moment that it was set

19 up, we agreed on a platform of cooperation and on Sadri leading the

20 village in its defence. Then Sadri had all the powers to organise the

21 village defence, engaging all the youths who were willing to help him with

22 whatever means they had.

23 Q. Who nominated Sadri for this position, if anyone?

24 A. I explained it. It was done with the agreement of the villagers

25 of Grabanice in coordination with the KLA headquarters in Jabllanice.

1 Q. I'm going to put the question to you this way: Whose idea was it

2 for Sadri to occupy that position?

3 A. I think that earlier Sadri had joined that movement, and in the

4 past he was also one of the guards of the village together with some

5 brothers of his, so nobody was against him being in that position. He had

6 also completed his military service in the former Yugoslavian army. He

7 had the necessary expertise to do that kind of job.

8 Q. So Sadri had joined that movement, and I take it that's the KLA?

9 A. Yes. Yes, the KLA, of course.

10 Q. Is -- do you know Lahi Brahimaj?

11 A. Yes. Yes, certainly, I do.

12 Q. Is he a relative of yours?

13 A. Yes. How to say it, how to put it. His uncle is a grand,

14 grand-nephew of my father.

15 Q. Do you know his brother, Selman?

16 A. Yes, I do. I used to go to high school for three years with him.

17 From Jablanica he came and we walked to the high school together.

18 Q. And in May of 1998, you knew Mr. Brahimaj, Mr. Lahi Brahimaj?

19 A. Yes, certainly I do. Even earlier than that.

20 Q. How well did you know him in May of 1998? What sort of

21 relationship did you enjoy at that time?

22 A. Are you asking me only about 1998 or even before that time?

23 Q. I'd just like you to give a succinct answer and explain to the

24 Trial Chamber how well you knew the man, Mr. Lahi Brahimaj. Was he just

25 a casual acquaintance? Did you know him quite well? Was he a very close

1 friend? Try and comment and give the Trial Chamber an idea of what your

2 relationship was.

3 A. It was a time when it happened that he stayed with his uncle in

4 the village and we might play together for a week or so. Then from 1992,

5 when Jabllanice was isolated by the Serbian forces, they had a clash with

6 the Serb forces, then after that our contacts were very rare, because the

7 Jablanica inhabitants were not very free to move about.

8 Q. I take it, then, that you knew him quite well as a child, but that

9 from 1992 you saw him less often. Is that what you're saying?

10 A. Yes.

11 Q. Thank you. I want you to --

12 MR. DI FAZIO: If Your Honours please, I want to ask some

13 questions that I think require us to go into closed -- into private

14 session briefly.

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21 [Open session]

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

23 JUDGE ORIE: Thank you, Madam Registrar.

24 MR. DI FAZIO:

25 Q. Mr. Fazliu, I want to ask you about an attack on Grabanica that

1 occurred in May by Serb forces. I don't think that's in dispute.

2 Firstly, can you tell the Trial Chamber if, indeed, Serb forces did attack

3 the village of Grabanica, or the area in which the village is located, in

4 May of 1998?

5 A. As for the date, you're not talking about a specific date, are

6 you?

7 Q. Yes, I am. I'm talking about May of 1998. I'll suggest a date.

8 I don't think there's any dispute about that. Around the 20th of May,

9 1998, did Serb forces launch an attack on Grabanica and the surrounding

10 area?

11 A. Yes. I can say yes. But on the 16th there were shots heard from

12 the direction of Dollova. But Grabanica, yes, it was attacked on the

13 evening of the 19th of May and all day on the 20th of May by the Serb

14 forces.

15 Q. Thank you. And did villagers from Grabanica put up any resistance

16 to this?

17 A. The villagers of Grabanica together with some members of the KLA

18 remained there until they ran out of munition and then they were forced to

19 withdraw.

20 Q. These are the men of the village of Grabanica?

21 A. Yes. Probably two or three families. There were one or two

22 women, but most of them were men.

23 Q. And they offered what resistance they could to the Serb forces

24 then?

25 A. Yes. We did what we could, but we did not have heavy weapons.

1 But we resisted up until the evening of the 20th.

2 Q. Thank you. And did you participate in that fighting?

3 A. Everybody who was there and people who were ready, they stayed

4 there up until that time.

5 Q. Thank you. And did there come a time when resistance had to be

6 abandoned?

7 A. Yes, but the Serbs -- after a Serb family left from Bokshiq, they

8 thought that in Grabanice there were heavy forces and they did not dare to

9 come to the village of Grabanica. And we carried on resisting up until

10 the end of the 20th and we lost one person, Lezi, in the fighting.

11 Q. My question was: Did the resistance to the Serb attack eventually

12 stop or come to an end?

13 THE INTERPRETER: Microphone for the witness, please.

14 THE WITNESS: [Interpretation] The Serb attack lasted all day and

15 did not stop up until the evening.

16 MR. DI FAZIO:

17 Q. That's the 20th; am I correct?

18 A. Yes.

19 Q. Thank you. Did the men from the village of Grabanica and the KLA

20 representatives continue fighting after the 20th or did they leave the

21 area?

22 A. In the evening of the 20th everyone left the village.

23 Q. Including yourself?

24 A. Yes, me too. I left on the evening of the 20th of May.

25 Q. And where were you intending to go?

1 A. We had no intention of going anywhere. We only wanted to leave

2 the village, probably to work towards Lugu i Baranit or towards Dushkaja.

3 But we had no intended target, place, to go to, because I did not know

4 where the rest of my family was.

5 MR. DI FAZIO: Can we go into private session, please.

6 [Private session - confidentiality lifted by later order of the Chamber]

7 THE REGISTRAR: Your Honours, we're in private session.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 MR. DI FAZIO:

10 Q. Did you leave the area in company with anyone?

11 A. Yes.

12 Q. Who were you with?

13 A. As I've said earlier, I was with Naser Lika and there were other

14 co-villagers. But we were together up to Gllogjan and then we parted

15 ways. Some went towards Lugu i Baranit and others went towards

16 Jabllanice.

17 Q. Who is we?

18 A. Me and Naser. We continued towards Jabllanice. The rest went

19 towards Baran. I'm talking about the villages of Grabanice and Bokshiq.

20 Q. And where did you end up, you and Naser Lika?

21 A. We ended up in Zhabel.

22 Q. Thank you. I'll continue asking you questions about this trip to

23 Zabelj and I'll refer to Mr. Lika as your travelling companion.

24 Did you and your travelling companion go through the village of

25 Gllogjan?

1 A. We passed through Gllogjan. The road passes through Gllogjan. It

2 goes down towards the church and on the left-hand side to Jablanica.

3 Q. Thank you. And for the purposes of the geography, is this

4 Gllogjan in the municipality of Peja?

5 A. Yes. Up to there it is the municipality of Peja, and that's

6 from -- from the western part of Grabanice where the Gllogjan belonging to

7 Peja is connected to our part.

8 Q. I'd like to show you a map now and I'd like you to point out a

9 number of villages, please, which we may talk about during the course of

10 your evidence.

11 MR. DI FAZIO: If Your Honours please, can the witness be shown

12 Exhibit D32, please. Yes, D32. And I'd like to focus in, I suppose, on

13 the middle right-hand third of the -- of that image. You can see that

14 there are circles around some of the villages. Yes, thank you very much.

15 Q. Have a look at what you can see on the screen, witness, please.

16 I'd like to -- and on the side of the screen there you have a little red

17 pen, if the usher would just assist you. I just want to mark some of the

18 villages that may come up in -- that may have been mentioned already.

19 Some of these villages are clearly marked. We can see Grabanica that

20 you've mentioned and also Zabelj also that you've mentioned. I wanted you

21 to mark some of the other ones. Firstly, can you see the village of

22 Bokshiq?

23 A. Yes.

24 Q. Could you just underline that with the pen on the screen. If you

25 just underline it, it will come up.

1 A. [Marks]

2 Q. Thank you. What about the village of Dollova that you've

3 mentioned, can you see that? And can you mark that, please.

4 A. Yes, I can see that. [Marks]

5 Q. And can you do the same with the village of Ceskovo, please.

6 A. [Marks]

7 Q. And can you do the same with the village of Kepuz.

8 A. [Marks]

9 Q. Thank you very much. And could you indicate -- I'll withdraw that

10 question. Thank you.

11 MR. DI FAZIO: If Your Honours please, I'll tender that particular

12 image.

13 JUDGE ORIE: Madam Registrar, that would be number?

14 THE REGISTRAR: That would be Exhibit number P884, marked for

15 identification.

16 JUDGE ORIE: Any objections? No objections. Admitted into

17 evidence. Please proceed.

18 MR. DI FAZIO:

19 Q. You've told us, you've mentioned in evidence that you were heading

20 towards -- that you went to the village of Zabelj with your travelling

21 companion. Why that particular village? Can you explain that to the

22 Trial Chamber?

23 A. Probably before then I had -- I remember I've only been to Zhabel

24 twice and I never stayed there, but it was Naser's idea or my travelling

25 companion, as you called him.

1 Q. If you wouldn't mind, let's refer to him as "travelling companion"

2 for the time being. Where did you stay in Zabelj?

3 A. We stayed at the house of Tal Zeka.

4 Q. Now, before we get details of that, I want to ask you about your

5 trip to Zabelj, just one feature of it. You said that you went through

6 Gllogjan. Did you see anyone, any of your relatives in Gllogjan?

7 A. I can't remember. There were many people from our village and the

8 surrounding villages, but I can't remember whether I saw any relatives of

9 mine.

10 Q. Okay. I'd like to show you a statement that you provided to the

11 Office of the Prosecutor. It's -- I'll show you the Albanian version, and

12 it's 65 ter 1919. I'd like you to look at paragraph 17 of that.

13 MR. EMMERSON: I'd just like, if I may, to seek some clarification

14 as to the basis upon which this is being done, because I think

15 Mr. Di Fazio is aware that this witness, when interviewed by the

16 Prosecution in May, indicated certain things about certain passages in his

17 statement, including this one, which makes it somewhat surprising that

18 it's being put to him at the moment.

19 JUDGE ORIE: Mr. Di Fazio, is there any reason why you first draw

20 the attention of the witness to his statement rather than elicit his

21 evidence, if at least if you want to elicit the evidence of paragraph 17.

22 MR. DI FAZIO: The witness has said he can't remember. He's

23 provided this statement in the past in which he does provide commentary on

24 this episode, on an episode that occurred there. It may assist in

25 refreshing his memory.

1 MR. EMMERSON: Well, if the purpose is memory-refreshing --

2 JUDGE ORIE: Could the witness take his earphones off for a

3 second. Mr. Fazliu, could you take your earphones off for one second.

4 MR. HARVEY: Your Honours, could I also point out that the witness

5 has on the screen in front of him the statement.

6 JUDGE ORIE: Could you put that off. Please proceed.

7 MR. EMMERSON: If the purpose is memory-refreshing, then I'm sure

8 Mr. Di Fazio's own memory will serve us right. This is a passage about

9 which he asked him during a videolinked interview on the 11th of May.

10 Unless I'm much mistaken - I'm looking at the passage now - it was a

11 passage that the witness just found, in which case the purpose isn't

12 memory-refreshing at all unless he's putting both passages to him and

13 asking him which is correct.

14 JUDGE ORIE: Mr. Di Fazio, would you put both passages to him in

15 order to --

16 MR. DI FAZIO: I'm more than willing to put both passages to the

17 witness, if Your Honours please. Perhaps I --

18 JUDGE ORIE: Let me just check with the other Defence counsel.

19 Would that be a course to take?

20 MR. HARVEY: Yes, Your Honour, that's one way of approaching it.

21 Another would simply be for Mr. Di Fazio to ask him directly rather than,

22 Did you see one of your relatives? Ask him outright: Did you see

23 Lahi Brahimaj? I have no objection to that and maybe that will get us

24 where we're going much faster and more clearly.

25 JUDGE ORIE: Mr. Di Fazio, earlier, I think the witness explained

1 that one of the accused was a -- although a relative, quite far away, so

2 that might cause some confusion. I leave it up to you which of the two

3 suggested courses you will take.

4 MR. DI FAZIO: I'm content with the question that I asked. I

5 don't want to ask any question. I asked him if he saw any relatives.

6 He's provided evidence about his relationship with the accused in this

7 case. He says he can't remember. I'm happy to adopt Mr. Emmerson's

8 suggestion and put both versions to the witness and ask him to clarify.

9 JUDGE ORIE: I think until now neither of these suggestions has

10 been objected by anyone.

11 MR. GUY-SMITH: There has been no objection, but considering that

12 I think what we're trying to do is understand a specific fact that

13 Mr. Di Fazio is seeking, I would adopt the suggestion that's presently

14 been made by Mr. Harvey.

15 MR. EMMERSON: I'm sorry, if I didn't make myself -- if I didn't

16 make myself clear enough, that is also my suggestion. The point I was

17 making was simply Mr. Di Fazio is aware that there are passages in this

18 witness statement that this witness does not accept were correct, and to

19 launch straight in to seeking --

20 JUDGE ORIE: What you are objecting to as a matter of fact is to

21 refresh his memory in only one direction or not the other.

22 MR. EMMERSON: Or simply to ask the witness what occurred at a

23 particular place is the way forward, I would suggest.

24 JUDGE ORIE: Mr. Di Fazio, is this sufficient for you, that the

25 main objection is against refreshing his memory on the basis of one

1 specific statement, and a lot of suggestions, I take it that you'll find

2 your way through it at this moment.

3 MR. DI FAZIO: Yes. I have a number of suggestions. I'm happy to

4 refresh this witness' memory. He said he can't remember - he said he

5 can't remember - let's be clear about that, on the basis of what

6 Mr. Emmerson wants me to put, namely, what he said to the Prosecution

7 during an interview and also on the basis of the -- of a prior -- another

8 statement made on another occasion. I'm happy to do that.

9 MR. EMMERSON: I do apologise, because this is an untidy way of

10 proceeding.

11 JUDGE ORIE: I suggest that, Mr. Di Fazio, he doesn't remember.

12 Perhaps you directly put that question to him, and then, of course, I can

13 understand that you then put to him that he gave different statements on

14 that and then to ask for further clarification.

15 MR. DI FAZIO:

16 Q. Do you recall having any conversation with any --

17 JUDGE ORIE: Now we have to ask the witness to put his earphones

18 on again.

19 MR. DI FAZIO:

20 Q. Did you see any KLA members in Gllogjan on your way to Zabelj?

21 A. Maybe there were and certainly there must have been because it was

22 a wartime. But I can't give you any names. There were many such people

23 moving up and down, some using vehicles, some walking on foot.

24 Q. You can't recall the names of anyone who you -- any KLA men that

25 you saw there?

1 A. No. I saw someone in uniform in Jabllanice, Lahi Brahimaj with a

2 colleague of his whom I don't know. Maybe this is why the mistake is,

3 that is Gllogjan is mentioned. The fact is that we met Lahi Brahimaj on

4 the way to Gllogjan. But this happened in Jabllanice, not in Gllogjan.

5 Q. Who precisely is Lahim?

6 A. Lahi Brahimaj, Mr. Lahi Brahimaj, who is here in this courtroom.

7 Q. Did you meet him in -- sorry, I withdraw that. You can't recall

8 seeing any of your relatives in Gllogjan; is that correct?

9 A. My cousins are in Dasinoc and Turjaka. There weren't any cousins

10 of mine there.

11 Q. Was Lahi Brahimaj one of your cousins that you saw there?

12 A. I saw Lahi in Jabllanice. He was in a car. And he stopped and we

13 talked together.

14 Q. Can you remember what he said?

15 A. He greeted us. He opened the door of the car. He greeted us. I

16 was with my travelling companion, as you put him -- put it. And he asked

17 us where we were going and we said that we were going in the direction of

18 Zhabel. I was carrying an automatic rifle with me. And he said, "Is it

19 possible that you give me this automatic rifle because there are some

20 soldiers at the front line without weapons," and this is what I did. But

21 I asked him to give it to me when I needed it, which really happened. But

22 on this occasion Naser gave of his own free will two bombs, because he

23 didn't have any weapons.

24 Q. Is that the only conversation you had with Mr. Brahimaj?

25 A. At the moment we met him, that was all we exchanged. When I gave

1 him my weapon, we saluted each other. Then they went on their way in

2 their car; we continued to work in the direction of Zhabel.

3 Q. Okay. Thank you for that. And when you got to Zabelj, what did

4 you -- what did you do?

5 A. We arrived very late; maybe it was 10.00 or 1100. I can't be

6 sure. I didn't have a watch. Naser showed us the way and we went to the

7 house of Tal Zeka.

8 JUDGE HOEPFEL: May I ask you whether it was the evening or the

9 morning, 10 or 11?

10 THE WITNESS: [Interpretation] It was evening. It was late and I

11 was drenched to the skin because it was raining all day now and again.

12 JUDGE HOEPFEL: Thank you.

13 MR. DI FAZIO:

14 Q. Were there numbers of other people taking refuge at this house,

15 other Albanians?

16 A. Yes, there were.

17 Q. How long did you and your travelling companion remain at this

18 house?

19 A. I can't be sure. If I'm not mistaken, some three nights, I think.

20 Q. And during that period of time were you visited by any KLA

21 soldiers?

22 A. One day a group of soldiers came. Nazmi Brahimaj was one of them.

23 We had a conversation at the guestroom of Tal Zeka, in the oda.

24 Q. Is Nazmi Brahimaj related to Lahi Brahimaj?

25 A. He was his brother.

1 Q. Thank you. What conversation was -- well, let me withdraw that.

2 Were there any other KLA men who came to the house on this occasion?

3 A. I remember there was someone, a commander of Zhabel, I think his

4 name was Tahir, and three or four other soldiers whom I don't know.

5 Q. Thank you. And what was the conversation that you had?

6 A. It was mainly Nazmi who did the talking. It was about our return

7 to the villages where we had left from following the attack by the Serb

8 forces.

9 Q. And was he addressing his comments to you and your travelling

10 companion or to a wider group of people?

11 A. He was addressing all of us. He meant his words for all the

12 villagers. He was discussing with us how to find the way for them to go

13 back to their home and about the shortage of arms.

14 Q. Thank you. And is this villagers from Grabanica or a wider area?

15 A. I didn't understand your question.

16 Q. You said that Nazmi Brahimaj was addressing you about going back

17 to your villages and the shortage of arms. Were these comments -- were

18 these comments being addressed to villagers from your village, Grabanica,

19 or were they being addressed to a group of people from more than just one

20 village?

21 A. All of us who were there in the room, in the oda, he was

22 addressing all of us without making any distinction.

23 Q. And were they all Grabanica villagers, all of you in that oda, or

24 were there other villagers from other villages as well?

25 A. If I'm not wrong, there were two people from Turjaka but I don't

1 know them. Otherwise, six or seven of us, I think, were from Grabanice.

2 Q. And presumably all LDK supporters; is that right?

3 A. Yes. I think I mentioned that even earlier, that until the

4 situation deteriorated, all of us belonged or supported the LDK. After

5 that I can't be sure because people might have changed their beliefs.

6 JUDGE ORIE: Mr. Di Fazio, I'm looking at the clock. We need a

7 break. Would this be a suitable moment?

8 MR. DI FAZIO: This is a fine moment for a break.

9 JUDGE ORIE: I would first like to ask Madam Usher to escort the

10 witness -- Mr. Fazliu, we will have a break, approximately 20 minutes.

11 Madam Usher will now escort you out of the courtroom.

12 [The witness stands down]

13 JUDGE ORIE: Madam Registrar, can we return into open session?

14 [Open session]

15 JUDGE ORIE: Thank you, Madam Registrar.

16 Mr. Di Fazio, could you give us an impression of how much more

17 time you'll need? Some time was taken by procedural matters, but I think

18 you informed the Chamber that you would need approximately one hour. If I

19 deduct 10 minutes for procedural matters, we're about at that hour. How

20 much time would you still need?

21 MR. DI FAZIO: If Your Honours please, I rather expect that the

22 remainder of this witness' testimony will pass fairly swiftly. Can I say

23 I'd need about another 20 minutes. I know that I'm exceeding the time.

24 JUDGE ORIE: Could the Defence who do not know what is still there

25 to come, could the Defence give an impression on what they expect at this

1 moment.

2 MR. EMMERSON: I would be very reluctant to commit myself to

3 completing cross-examination today if we're looking at another 20 minutes

4 of examination-in-chief, if that's a sufficient answer for Your Honours.

5 JUDGE ORIE: Then, perhaps later today I might put the question to

6 you again, closer to 7.00, and to the other counsel as well.

7 Mr. Harvey.

8 MR. HARVEY: Your Honour, I certainly will have some questions

9 over and beyond Mr. Emmerson. As Your Honours will well appreciate, this

10 matter comes a little closer to home for my client.

11 JUDGE ORIE: Mr. Guy-Smith.

12 MR. GUY-SMITH: At present I have four questions. I trust it

13 won't be more, many more than that based on the way examinations have gone

14 previously.

15 JUDGE ORIE: I will put the same question to you again closer to

16 7.00, also because the Chamber needs a bit of time tomorrow for procedural

17 matters as well, and of course we have to finish with this witness before

18 we adjourn tomorrow, not sitting on Friday, not sitting on Monday.

19 We'll take a break of 20 minutes. That means that we'll resume at

20 five minutes past 6.00.

21 --- Recess taken at 5.42 p.m.

22 [The witness takes the stand]

23 --- On resuming at 6.09 p.m.

24 JUDGE ORIE: Mr. Di Fazio, please proceed.

25 MR. DI FAZIO: Thank you.

1 Q. You've -- sorry. You told us that Nazmi Brahimaj addressed you

2 men at the house of -- at the house in Zabelj and asked you to go back to

3 your villages. Did he explain to you what he wanted you to do back in

4 your villages?

5 JUDGE ORIE: Mr. Di Fazio, we returned into open session, so I

6 think in view of what we discussed before the break, unless your line of

7 questioning would not require further reference to the reason why we went

8 into private session --

9 MR. DI FAZIO: We'll be coming back to that particular personality

10 in a while, but for the moment we can go back into open session, yes.

11 JUDGE ORIE: We are in open session at this moment.

12 MR. DI FAZIO: I'm sorry.

13 JUDGE ORIE: So please keep in mind to return into private session

14 in due course.

15 MR. DI FAZIO: I'm sorry. I misunderstood. Yes, we can remain in

16 private session. Thank you. Thank you for alerting me, if Your Honours

17 please.

18 JUDGE ORIE: So therefore -- no, now the confusion is complete.

19 Just prior to the break, we returned into open session when I asked

20 questions about timing, so we now resumed in open session; but I do

21 understand, and perhaps that's a wise thing to do, is to return into

22 private session at this moment.

23 MR. DI FAZIO: Very well, Your Honours, yes.

24 [Private session - confidentiality lifted by later order of the Chamber]

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

1 JUDGE ORIE: Thank you very much, Madam Registrar.

2 Please proceed.

3 MR. DI FAZIO: Thank you.

4 Q. You said before the break that Nazmi Brahimaj had asked you to go

5 back to your village. Did he explain for what reason, what he wanted you

6 to do?

7 A. Nazmi Brahimaj came so that when the conditions were ripe and when

8 we had enough weapons, he wanted to sound out our readiness to see how

9 ready we were.

10 Q. I see. And did he sound out your readiness at the house of -- at

11 the house that you were at in Zabelj?

12 A. Yes. We -- at least I speak for myself, but it's more difficult

13 to remain in another village than in your own village. So for us it was

14 easier for me to go back to my village. It's easier even to die in your

15 village than in another village.

16 Q. Was this readiness to fight, to engage in armed conflict against

17 the Serbs?

18 A. Yes. We were ready from the 13th onwards.

19 Q. Okay. I'm asking you about Nazmi Brahimaj. Nazmi Brahimaj, in

20 the house in Zabelj, did he ask you and ascertain from you, you in

21 particular and also the other men who were gathered there with you, your

22 fellow villagers, whether you were ready to fight back in your village?

23 Did he ask you that?

24 A. He didn't ask a personal question of any one of us, but it was in

25 general that he spoke.

1 Q. And was the readiness that he was inquiring about, readiness to

2 engage in armed conflict against the Serbs, was that the readiness that

3 you referred to?

4 A. That was the main aim for all of us, to fight the Serbs.

5 Q. It might have been the main aim for all of you. It's a very

6 simple question that I have. Was that what Nazmi Brahimaj was trying to

7 ascertain from you? Is that what you're saying?

8 A. Yes, yes.

9 THE INTERPRETER: Could the witness be asked to stay a little bit

10 far from the microphone because we hear his breathing.

11 JUDGE ORIE: As a matter of fact, I was just writing a question to

12 Madam Usher to the same effect. Perhaps if we adjust the microphone a

13 little bit so that the witness can be heard well.

14 Please proceed.

15 MR. DI FAZIO: Thank you.

16 Q. Did you or the assembled men indicate anything in response to

17 Nazmi Brahimaj?

18 A. If I'm not mistaken, I remember that I engaged in a conversation

19 with one of the soldiers whose nickname was Ujku, meaning wolf. I don't

20 know his name. In my opinion he didn't meet the criteria to be a soldier

21 because he spoke in some rather odd expressions. But in times of war

22 maybe people speak even in this way.

23 Q. Thanks. Let me approach this topic in another way. Following

24 this discussion or -- this discussion with Nazmi Brahimaj, did you go

25 anywhere?

1 A. No, no. That day the conversation lasted more -- not more than

2 five or ten minutes, and then they went to Jabllanice or to some other

3 front place. I don't know. We remained there.

4 Q. Thank you. Were you revisited at that house by KLA men on

5 subsequent days?

6 A. On the next day Ujku, or wolf, came. It was either I think

7 mid-day or afternoon.

8 Q. Was he alone?

9 A. I think he came with a person called -- I mentioned his name in my

10 statement. At this moment I don't remember his name. He is also from

11 Jabllanice.

12 Q. Which statement would that be?

13 A. In the statement I gave to the -- to the Tribunal.

14 Q. That was an accurate detail that you sought to give on that

15 occasion?

16 A. His last name is Zeneli. I don't remember. Now I do. Arbnori

17 Zeneli. That is, Ujku came with Arbnor Zeneli.

18 Q. When you gave that detail you were trying to be truthful and give

19 an accurate detail to the investigator?

20 A. Which detail are you asking me about?

21 Q. About Zeneli.

22 A. Arbnor Zeneli. Ujku came with Arbnor on the next day on the talk

23 that we had with Nazmi.

24 Q. Thank you. On this occasion when Arbnor and Ujku came, what was

25 the topic of conversation?

1 A. As I mentioned earlier, Ujku started the conversation with softer

2 tones, but then later he started using insulting expressions. Initially

3 he said that we should go to Jabllanice to assist in digging the grave of

4 some youth who had committed suicide. Then he changed what he said

5 earlier and his stand and he started to insult us. I wouldn't say the

6 same of Arbnori. He didn't insult us in any way. On the contrary, he

7 criticised Ujku.

8 Q. Did you go to -- did you eventually leave the house at which you

9 were staying?

10 A. We left the house and the words we exchanged with them were at the

11 end of the stairs. Tahir, that commander of Zabelj was there, and both

12 Arbnori and Tahir rebuke Ujku for his conduct towards us.

13 Q. Did you eventually leave the house and go to another village?

14 A. After this we, together with Naser and two other co-villagers, we

15 continued. Ujku got on a car and he left for somewhere. I never saw him.

16 And together with some soldiers and Tahir, the commander of Zabelj, we

17 continued our way. He asked me about my life, my profession. These are

18 the kinds of conversations we had until Jabllanice.

19 Q. As clearly as you can, please, explain to the Trial Chamber why

20 you left the house and went to Jablanica in the company of this KLA men?

21 Why did you do that?

22 A. I already stated that one day earlier we discussed the need to

23 discuss and come up with a unified stand on remobilising ourselves and

24 returning to the previous positions in Jabllanice and in Bokshiq, the

25 neighbouring village.

1 Q. Thank you. That's what you discussed the day before. But why did

2 you go to Jablanica in company with these KLA men? Just tell us clearly

3 and expressly why that was so.

4 A. I said that Ujku raised a concern but Arbnori later explained the

5 situation, telling us that we had to talk about our mobilisation. Why

6 shouldn't we all go together, he said, myself and the other, and discuss

7 what the Serb forces were doing against the Albanian population.

8 Q. And how many men were --

9 MR. EMMERSON: Before Mr. Di Fazio continues, I'm looking at the

10 transcript at page 73, line 24, where it says "returning to the previous

11 positions in Jabllanice and Bokshiq." I wonder, certainly from listening,

12 whether the witness intended to say Jabllanice or Grabanice.

13 THE INTERPRETER: Interpreter's correction: The witness said

14 Grabanice.

15 JUDGE ORIE: Yes. This has been clarified. Please proceed,

16 Mr. Di Fazio.

17 MR. DI FAZIO: Thank you.

18 Q. Apart from the KLA men who went to -- who were accompanying you,

19 how many of you villagers were going in this party towards Jablanica?

20 Just how many men, apart from the KLA men?

21 A. Myself and my travelling companion, Fadil Selmani and Ali Berisha.

22 Q. All from Grabanica?

23 A. No, no. Yes, yes. The four of us were from Grabanice.

24 Q. You were -- I withdraw that question. How did you get there?

25 A. You mean to Jabllanice from Zhabel?

1 Q. Yes.

2 A. We walked on foot, talking on the way, as if you do in normal

3 situation, with Tahir, and we didn't have any problem. He asked me where

4 I worked. I told him that I was a principal of the school for so and so

5 years. I explained to him my education. Then I asked him what he was

6 doing and he said that he was working in Switzerland. Things like this.

7 Q. And were all of you -- all of you men from Grabanica content to go

8 to Jablanica?

9 A. Personally, I didn't have a problem with that. I am not a

10 psychologist to know what the others were thinking. But as far as I am

11 concerned, nothing worried me.

12 Q. Were you anxious to discuss your mobilisation with the KLA?

13 A. On the way to there I asked Tahir why he had returned from

14 Switzerland and he said that he came back because he wanted to contribute

15 to the country's liberation. These were the sort of conversations we had

16 with him on the way.

17 Q. But were you, Mr. Fadil Fazliu, were you anxious to get to

18 Jablanica and discuss your mobilisation with the KLA?

19 MR. EMMERSON: I'm sorry, I'm just slightly concerned about

20 potential ambiguity in the question, particularly through an interpreter.

21 JUDGE ORIE: Would you reformulate it.

22 MR. DI FAZIO:

23 Q. Were you, Mr. Fadil Fazliu, keen to go to Jablanica and speak to

24 the KLA about fighting or going back to Grabanica to fight?

25 A. I would have preferred at that time to have enough weapons to

1 fight the enemy as we wished, but I didn't have much confidence that,

2 given the weapons we had at our disposal, we would be able to fight such a

3 force, that we had to fight like the paramilitaries and other Serb forces.

4 Q. Were you keen at the time that you were going towards Jablanica to

5 go to Jablanica and discuss fighting or mobilisation with the KLA? That's

6 my question. That's my question. It's not whether or not you had good

7 weaponry. It's not whether you found yourself in an ideal situation. I

8 understand that. My question is simply this: Were you keen at the time

9 to go to Jablanica and discuss the question of mobilisation or fighting in

10 Grabanica?

11 JUDGE ORIE: May I take it that the same kind of objection as with

12 the previous question?

13 MR. GUY-SMITH: Yes.

14 JUDGE ORIE: The word "keen," just as the word "anxious," could be

15 easily mistranslated and have several meanings.

16 MR. EMMERSON: What Mr. Di Fazio is trying to get at is whether

17 the witness went voluntarily. If that's the question he's seeking an

18 answer to, then it can be put in --

19 JUDGE ORIE: Let Mr. Di Fazio reformulate his question and then

20 we'll hear what exactly he wants to find out. But both the word "anxious"

21 and the word "keen" could have several meanings and could easily create

22 confusion. Please proceed.

23 MR. DI FAZIO: Thank you, Your Honour.

24 Q. Did you want to go to Jablanica and discuss mobilisation and

25 fighting wherever with the KLA?

1 A. Even though we understand your question rather differently, I

2 agree with you that I had a positive reaction to the talk. I understand

3 that you, asking me this question, want to find out whether I was forced

4 to go there, which is not the case. Nobody used any force against me.

5 Nobody pushed me to go there by force. I went there with my own free

6 will. I might have also refused to go there. But I did go.

7 Q. Can you explain to the Trial Chamber if you'd given any thought to

8 going to Jablanica to speak to the KLA about fighting or mobilisation

9 prior to this?

10 A. I remember it was 1998. I was with someone called Elvir Berisha,

11 a colleague of school. We went with his tractor along Nepol [phoen] river

12 and we went to Jabllanice. We remained there until after midnight and had

13 conversations with some people there who were standing guard duty in

14 Jabllanice, among them was Murt Zeneli. Lahi, I think, wasn't there that

15 night because he was somewhere else on business.

16 Q. Thank you. That's -- that's -- thank you for that answer.

17 A. So the conversation lasted one hour.

18 Q. Thanks for that explanation. I appreciate that. But if we could

19 just go back to my question, could you answer it, please. My question is

20 this: Can you explain to the Trial Chamber if you'd given any thought to

21 going to Jablanica to speak to the KLA about fighting or mobilisation

22 prior to you actually going there?

23 MR. GUY-SMITH: He just answered that question, Your Honour. I

24 think that it's a bit confusing in the manner that it's been posed.

25 MR. DI FAZIO: I see no answer in that -- in that answer.

1 JUDGE ORIE: The question could be put to the witness again.

2 Could you please try to focus on what Mr. Di Fazio asked you.

3 THE WITNESS: [Interpretation] I already said that the first

4 efforts were made even earlier, but we decided together with Enver

5 Berisha, and we went there and the entire talk we had was focused on the

6 arms supply for villages that were in our locality, in our municipality,

7 Grabanice, Qeskove. Because Enver was from Qeskove. We had this talk with

8 Murt Zeneli and other villagers on this topic.

9 MR. DI FAZIO:

10 Q. Let me approach it this way: On your way to Zabelj, were you

11 considering going to Jablanica to discuss mobilisation or fighting with

12 the KLA during that part of your trip?

13 A. Yes.

14 Q. Could you tell the Trial Chamber why you didn't go to Jablanica at

15 that point to discuss fighting and mobilisation with the KLA?

16 A. At which moment are you asking me about?

17 Q. On the way to Zabelj.

18 A. From Zhabel we went to Jablanica headquarter and there we had

19 similar talks as the one we had with Nazmi one day earlier.

20 Q. I see. Thank you.

21 JUDGE ORIE: Mr. Di Fazio, it seems that until -- unless I

22 misunderstood the question, I think the question was why didn't you go

23 directly to Jablanica to discuss these matters rather than first go to

24 Zabelj? I think that's what Mr. Di Fazio is interested to know.

25 THE WITNESS: [Interpretation] I explained earlier. It was night.

1 It was maybe from 9.00 to 11.00 in the evening when we travelled. And the

2 place that my companion wanted to go was far, so we had to go to this

3 place, stay there, rest a while, and that question of mobilisation could

4 wait. It could be discussed on the next day or on the following day,

5 because, as I said, I was wet to the bone.

6 MR. DI FAZIO:

7 Q. Thank you. That explains part of it. But having woken up the

8 next day and presumably not being wet to the bone, at that point why

9 didn't you go to Jablanica and discuss mobilisation with the KLA?

10 A. I am sorry, but really all my clothes were wet and the family

11 members of Tal, they took them to clean and to dry. So it took some time

12 for all this to be done. So I remained in the room with a T-shirt and

13 with a pair of trousers that they lent me.

14 Q. These KLA guys, Nazmi and the other man, Ujku, they came over a

15 period of two days to the house there, didn't they? Do I understand your

16 evidence correctly?

17 A. On the first day, yes. On the second day it was only Ujku and

18 Arbnori who came.

19 Q. Thank you. Did you make any effort to go to Jablanica and discuss

20 mobilisation on the first day when Nazmi came?

21 A. It was late afternoon when he came, if I'm not mistaken, and I had

22 nothing to prevent me from going there, because even my brother was being

23 treated in Jablanica. He was wounded in fighting in Grabanice and I could

24 hardly wait to go and visit even my brother.

25 Q. Thank you. And did you explain to Nazmi your keenness, or,

1 rather - let me withdraw that, I won't use that word - your desire to, A,

2 see your brother and, B, discuss mobilisation with the KLA, or at least

3 perhaps ask him to help you achieve your objective?

4 A. I think that would be no obstacle on the part of Nazmi, and

5 bearing also in mind the family connections because he knew who my brother

6 was and they had tried their best to heal wounds of my brother who was

7 being treated there.

8 Q. Okay. All right. Well, anyway, it took you two days before you

9 could achieve your desires and make your way to Jablanica to do the

10 various things that you wanted to do; correct?

11 MR. GUY-SMITH: I believe that that question mischaracterises the

12 witness' testimony and it's --

13 MR. DI FAZIO: I'll rephrase it.

14 MR. GUY-SMITH: Thank you.

15 MR. DI FAZIO:

16 Q. In any event, two days elapsed before you were able to go to

17 Jablanica and achieve whatever it was you wanted to achieve there.

18 A. I said it earlier. I could not leave the house undressed, and

19 that was because of the conditions. There were no other change of clothes

20 that I could use. And the way I was dressed, I could not even get out of

21 the doorstep of that house. And I was not the only person who had taken

22 shelter in that house and there were other people and they were in a

23 similar situation, they had similar needs.

24 Q. Thank you. Well, anyway, eventually you did make your way to

25 Jablanica. About what time did you arrive there? And can I also ask you

1 to address your mind to this issue, thinking back: What was the date that

2 you arrived in Jablanica, if you can remember? I don't invite you to

3 speculate. If you're not sure, say so. So I'm asking you two questions

4 in one. When did you get there? And secondly, if you know, what date did

5 you get there?

6 A. I'm not sure. Could have been the 24th but I'm not sure. It was

7 in the afternoon. I did not have a watch on me to know exactly with

8 minutes' accuracy. But it was the afternoon.

9 Q. At that time in May of 1998, did you know Ramush Haradinaj?

10 A. No, I didn't know him then.

11 Q. Did you know Idriz Balaj?

12 A. I never knew Idriz. I only saw him first when he appeared in

13 this -- before this Tribunal.

14 Q. Thank you. And when you got to Jablanica, you went to the KLA

15 headquarters.

16 A. We went into the courtyard of the army headquarters in Jablanica.

17 Q. Did you stay there in the courtyard?

18 A. We stayed in the courtyard. There were some other people from

19 Bokshiq, and I cannot remember the names of those people. We had a

20 conversation with a man with a moustache, Gani, who had brought food,

21 cheese, and other foodstuff, and people there managed to eat whatever they

22 could. And in the meanwhile we were talking about mobilisation and better

23 preparations to counter the Serb forces.

24 Q. Did you eventually leave Jablanica that day?

25 A. When all the conversations were over, we concluded that for the

1 moment we could not get enough weapons because the Serb forces were in

2 great numbers and we would have to wait for a more convenient moment to

3 get weapons. And then we went outside the courtyard and Arbnor was

4 waiting in a car that he could take us to wherever we wanted to.

5 Q. I gather you got to Jablanica that day, you stayed there for a

6 period of time, and you left Jablanica the same day. Do I understand you

7 correctly?

8 A. Yes.

9 Q. All in all, how long would you say you stayed in Jablanica from

10 the time of your arrival to the time of your departure?

11 A. I may just guess because we travelled very slowly from Zhabel to

12 Jablanica. It was like a walk at a picnic pace. So it was probably about

13 two hours and a half. But I cannot say exactly for how long we stayed.

14 Q. So is it correct that it was a matter of hours, no more, that you

15 were actually in Jablanica village?

16 A. I don't know exactly how many hours. It was in the afternoon that

17 we left Zhabel, plus the travel time. I cannot be more accurate on how

18 long we stayed there. It took a bit of time until people had something to

19 eat and then some people had tea and so on.

20 Q. Thank you. And the man described as your travelling companion,

21 was he also present with you when you arrived in Jablanica?

22 A. He was with us all the time. Like the rest of the villagers

23 there, he had things to eat.

24 Q. And what did you, you in particular, Mr. Fazliu, discuss in terms

25 of mobilisation with the KLA?

1 A. Our conversation, and given the family connections, the main

2 conversations I conducted were with Lahi and Nazmi, and the main

3 conclusion was that there was a -- in the lack of enough weapons, we'll

4 have to wait for a more convenient moment when there were enough weapons,

5 and that not only me but the rest of the people who were there would

6 willingly return to their villages to fight.

7 Q. Where was your weapon at that time, the time that you were in

8 Jablanica discussing this issue?

9 A. As I said earlier, I gave my weapon to Lahi as -- and that was of

10 my own free will, and I told him that he would return it to me when I

11 needed it, and it so happened when I asked him for that, he did return it

12 to me.

13 Q. And what plans were made -- sorry, Your Honours, I'll just

14 withdraw that.

15 Were any clear plans made for you and your fellow villagers to

16 mobilise? By that I mean were any clear dates set? Were any lists of

17 names drawn up as to who should be mobilised or who should be doing what?

18 Anything that was more concrete beyond a decision to mobilise at some

19 uncertain point in the future?

20 A. No date was set, but where each one of us stood, we -- everything

21 was recorded there at the headquarters. We recorded the names of where

22 people are at that particular -- were at that particular time, although

23 some people had crossed into Montenegro. But there was enough information

24 to mobilise people whenever that moment had come.

25 Q. And were any specific plans made beyond future mobilisation in

1 respect of you and Grabanica villagers?

2 A. That was difficult. It was difficult to draw up a specific plan

3 and that is because of the difficult geographic position that Grabanica

4 and Bokshiq have. It's -- that area was endangered by three -- from three

5 directions; from the Serbs in Dollova, on the other side it was the main

6 road 200 metres away, and on the other side there was Drenoc and other

7 villages where there were a large amount of weaponry and forces. And that

8 was why no specific plan could be drawn up to be enacted against the

9 Serbian forces in the circumstances when there was a lack of weapons.

10 Q. So two factors, two factors, militated against anything specific:

11 Lack of weapons and these geographic considerations relating to the

12 positions of the Serbs.

13 A. There was another third factor which had a great significance

14 because the Lugu i Baranit was not included in the war zone and there

15 wasn't a possibility for the Serb forces to come through the village of --

16 through Lugu i Baranit and straight to our area. So we were waiting for

17 Lugu i Baranit to be included in the war zone before we started to think

18 about the mobilisation of forces.

19 Q. Thank you. In the light of these factors that really made it

20 difficult to come up with any specific plan, do you know why it was

21 important to get you and your travelling companion and your fellow

22 villagers from Zabelj to Jablanica that very day? Do you know of any

23 other -- do you know of any compelling reason why that should be so?

24 A. I saw no compelling reason in addition to the ones from the

25 positive aspect. It was only to organise a meeting with all those who had

1 been forced to leave their home villages because of the circumstances and

2 to discuss the issues with them.

3 Q. Thank you. Following that, this discussion concerning

4 mobilisation, did you eventually leave the area of the KLA headquarters

5 and go elsewhere?

6 A. As I said earlier, outside the gate of the headquarters, Arbnor

7 was waiting for us in a car and he told us that he would take us, drive

8 us, to wherever we wanted to go. And we were driven to the house of Hadzi

9 Bajrami. That's where we wanted to go and that's where we were taken to.

10 That's where I parted ways with my travel companion. I went to a friend

11 called Maznik, Zylaj, and I stayed there for four weeks.

12 Q. I'm just about finished. I just want to ask you one or two more

13 questions about numbers. When this mobilisation was being discussed at

14 the KLA headquarters, how many men would you say were assembled, or

15 present at least, to discuss this issue?

16 A. As far as the people in uniform are concerned, as I said earlier,

17 I recalled there were five of them. Some of them were -- when the guards

18 were changed, some of them maybe were having something to eat; some were

19 having tea. But as far as we were concerned, we were more than ten people

20 from Grabanice and Bokshiq. In the meantime, Beqir Beqiri arrived.

21 Deliu, Mustafa Deliu, Uk Bardheci, and I can't remember other names. But

22 there were 10, probably 15 people present.

23 Q. Were the majority LDK members -- LDK sympathisers?

24 A. This question is being repeated frequently, but I said earlier

25 there was no time to ask which party affiliation people had at that time.

1 The situation did not allow for such questions to be asked..

2 Q. Did you go actually inside the KLA headquarters or did you remain

3 in the yard eating the food that Gani had brought you, and discussing

4 mobilisation?

5 A. I had some water from the well and then I sat around the table

6 that was there.

7 Q. In the yard or inside the headquarters?

8 A. The well is in the courtyard. That's where I got some -- had some

9 water. And then I entered the canteen where food was served and where the

10 conversations took place.

11 Q. Thank you.

12 MR. DI FAZIO: I have no further questions.

13 JUDGE ORIE: Thank you, Mr. Di Fazio.

14 Mr. Emmerson, since I have a few procedural matters, I think it

15 would be better that cross-examination starts tomorrow, because we have

16 only seven minutes left. I would need those seven minutes.

17 MR. EMMERSON: Yes. Your Honour asked for a time estimate.

18 JUDGE ORIE: Then I always prefer to do that in the absence of the

19 witness, since we do not need the witness anymore.

20 Mr. Fazliu, we're close to 7.00, where we always finish. Tomorrow

21 you'll be cross-examined by counsel for the Defence. I'd like to instruct

22 you not to speak with anyone about the testimony you have already given

23 today or you are still about to give tomorrow. We'd like to see you back

24 in Courtroom I - that's a different courtroom - tomorrow, quarter past

25 2.00 in the afternoon. I'll ask Madam Usher to escort you out of the

1 courtroom.

2 THE WITNESS: [Interpretation] Thank you.

3 [The witness stands down]

4 JUDGE ORIE: First, one observation about the beginning of this

5 court session. As it is said in Porgy and Bess, it is very difficult to

6 divorce woman that ain't married. Similarly, it is very difficult to lift

7 something that doesn't exist. I lifted protective measures which were

8 granted, but only up until the time until the witness would be called, so

9 I lifted something that was non-existent. I meanwhile checked what the

10 real procedural history was.

11 Then I have a few decisions to deliver. The first one is a

12 decision on the admission of portions of D9, D -- oh, we're still in

13 private session. Now the whole of the world will miss the quote of Porgy

14 and Bess. That's a pity. We'll return into open session. And I have to

15 live with that.

16 [Open session]

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

18 JUDGE ORIE: Thank you, Madam Registrar.

19 I will deliver a decision on the admission of portions of D9, D10,

20 D11, D13, D22, D53, D54, and D55.

21 On the 22nd and 29th of May, 2007, the Prosecution made

22 submissions on the admission into evidence of the items I just listed.

23 Each of these items has been used by the Defence, but not tendered, during

24 cross-examination of several witnesses. In its submissions, the

25 Prosecution clarified that it does not seek admission of D10 and D11, and

1 these exhibit numbers therefore will be vacated.

2 The Prosecution has asked for portions of all the other items to

3 be admitted. The Defence has objected to the admission of D9, D13, D53,

4 and D54. It does not object to the admission of D22 and D55.

5 According to the Prosecution, portions of D9, D13, D53, and D54

6 should be admitted into evidence in order to place the excerpts read to

7 the witnesses during cross-examination "in their proper context." The

8 Trial Chamber considers that re-examination is the proper occasion for the

9 Prosecution to further clarify or create a context for the evidence

10 elicited and the documents used during cross-examination. The Trial

11 Chamber therefore denies the Prosecution's requests as far as D9, D13,

12 D53, and D54 are concerned. These items are not admitted into evidence.

13 Further, the Chamber finds that the transcripts making reference

14 to D22 and D55 are sufficiently clear. There is therefore no need to have

15 admitted into evidence the portions of these items proposed by the

16 Prosecution and not opposed by the Defence. The Chamber therefore decides

17 not to admit these items into evidence.

18 And this concludes the Chamber's decision on the admission of

19 exhibits.

20 I now will deliver the Chamber's decision on the exhibits tendered

21 through witness Avramovic.

22 At the outset, the Chamber notes that there may have been some

23 unclarity as to the admission of the exhibits attached to the redacted 92

24 ter statement of this witness and its addenda. All of those documents are

25 hereby admitted with the exception, of course, I would say, of Annex 63,

1 the contested report of Mr. Visnjic.

2 The Defence for Mr. Haradinaj tendered eight documents through

3 this witness, namely, the documents marked for identification D140 through

4 D147. Six of these are statements of other persons and two are military

5 documents, all of which were put to Mr. Avramovic for his comments.

6 Therefore, significant portions of these documents are already reflected

7 in the record.

8 The witness had no prior -- had not prior to his testimony seen

9 the military documents that he was asked questions about, and overall, he

10 was not in a position to confirm or deny what is contained in those

11 documents.

12 The statements sought to be admitted by the Defence were either

13 taken by Defence or Prosecution investigators for the purposes of legal

14 proceedings before this Tribunal. According to the case-law of the

15 Tribunal, such witness statements are admissible only if they fulfil the

16 requirements of Rule 92 bis, 92 ter, or 92 quater. The admission of those

17 statements would have the effect of evading those Rules.

18 We note that Prosecution annexes 7 to 11 to Mr. Avramovic's 92 ter

19 statement, which are now Exhibits P130 through 134, are the

20 contemporaneous statements of the detained Albanian man. Those statements

21 were admitted, but the interviews were held by the Serbian Police for the

22 purposes of their investigations at the time and those documents primarily

23 shed light on the course and progress of those investigations.

24 It is for these reasons that we decide not to admit the documents

25 tendered by the Defence for Mr. Haradinaj into evidence. Only the

1 portions of those documents which have been read into the record remain in

2 the record.

3 This concludes the Chamber's ruling on this matter.

4 With the indulgence of the interpreters and the technicians and

5 the transcriber, I have a very short decision remaining. Otherwise, it

6 would take time tomorrow. It's not a decision, as a matter of fact, but

7 these are the reasons for the Chamber's decision on the Prosecution's

8 motion for protective measures for Witness 56.

9 The Prosecution applied for the assignment of a pseudonym and for

10 face and voice distortion for this witness on the 17th of July, 2007. The

11 Defence did not oppose the motion and the Chamber granted it on the 18th

12 of July, 2007. For reference, the decision can be found on transcript

13 page 7078.

14 The Chamber has set out the standard for granting protective

15 measures in numerous decisions, and there is no need to repeat it here.

16 The witness has close relatives in Kosovo and occasionally travels there

17 to visit them. The witness is afraid that the relatives would suffer

18 retaliation should it become publicly known that he gave evidence in this

19 case. Given the nature of the witness' testimony, the Chamber is

20 satisfied that it may antagonise persons in the community where his

21 relatives reside. The Chamber therefore found, on the 18th of July, that

22 the requirements for granting protective measures had been met.

23 This concludes the Chamber's reasons for its decision on the

24 Prosecution's motion for protective measures for Witness 56.

25 We adjourn until tomorrow, quarter past 2.00 in the afternoon,

1 Courtroom II but not until I have -- I, I'm making a mistake, Courtroom I,

2 but not until I've given the opportunity to Mr. Emmerson to say a bit more

3 about the timing of tomorrow and also not until I have given an

4 opportunity, if that is possible, very briefly, to receive a response by

5 counsel other than Mr. Emmerson on the issue of the witness to be added to

6 the witness list and whether that witness should be cross-examined. I am

7 talking about Witness Durrell [phoen]. We received already -- no, Mr.

8 Guy-Smith gave an answer already. Other counsel were invited to do that

9 yesterday.

10 MR. EMMERSON: Yes, Your Honour.

11 JUDGE ORIE: And failed to do that.

12 MR. EMMERSON: Your Honour is quite right. Our position is the

13 same as the position adopted by Mr. Guy-Smith.

14 JUDGE ORIE: Mr. Harvey.

15 MR. HARVEY: Ditto.

16 JUDGE ORIE: That's then clear.

17 Mr. Emmerson, how much time do you think you will need?

18 MR. EMMERSON: More or less an hour, I would expect.

19 JUDGE ORIE: Mr. Harvey.

20 MR. HARVEY: Depending on Mr. Emmerson's questions, I'm

21 anticipating about three-quarters of an hour.

22 JUDGE ORIE: Mr. Guy-Smith.

23 MR. GUY-SMITH: I'm anticipating no questions at all based upon

24 the evidence given in the Prosecution's case in chief.

25 JUDGE ORIE: Yes. Then including re-examination, I think that

1 it's -- we should try to -- we should endeavour to have the witness

2 excused not later than at the second break tomorrow morning, which would

3 leave us the last session tomorrow morning for procedural matters.

4 I'd like to thank the interpreters and the transcriber and the

5 technicians for granting six additional minutes which I hope to regain

6 tomorrow. We stand adjourned until quarter past 2.00 tomorrow, Courtroom

7 I.

8 --- Whereupon the hearing adjourned at 7.07 p.m.,

9 to be reconvened on Thursday, the 23rd day of

10 August, 2007, at 2.15 p.m.

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