1 Thursday, 1 November 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.24 p.m.
6 JUDGE ORIE: Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
8 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor
9 versus Ramush Haradinaj et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 It's unusual that the Chamber is announced twice by knocking on
12 the door three times, but, Mr. Dutertre, the Chamber received after the
13 first three knocks the following information that a new request for
14 subpoena has been filed, two subpoenas. That upon further inquiry by the
15 Chamber, the Chamber thought at the time might be too short for a subpoena
16 to be executed. The Chamber was informed that the OTP was informed by
17 those responsible for issuing such subpoena that the time was too short to
18 have it executed, so therefore the Chamber is surprised that it receives a
19 request for subpoenas of which the OTP is informed that it could not be
20 executed been the time-limits set by the Chamber, that's one.
21 The second is that it would certainly damage the reputation of
22 this Chamber if it would happen again as happened with the early subpoenas
23 that the parties, in this case the OTP, provides the Chamber with wrong
24 addresses so that we issue subpoenas where addresses are mixed up, and I
25 take it that the OTP would not expect the Chamber before issuing a
1 subpoena to verify the correctness of the addresses to see whether they're
2 mixed up. And if it was not one incident in a long list of incidents
3 where lack of precision has struck the Chamber several times, I would not
4 have used these rather strong words in court today.
5 Then I'd like to deliver a decision. There's no problem if the
6 witness is present, it's about the five out of the six exhibits.
7 Mr. Emmerson, unless there was something else, I thought you were
8 rising -- no.
9 But then have the booths -- yes, of the oral decision. The
10 Chamber will now give its decision on the admission of Exhibits P1205
11 through to P1209. The parties will recall that yesterday on the 31st of
12 October, 2007 -- yes, Mr. Dutertre.
13 MR. DUTERTRE: [Interpretation] Yes, Mr. President. I just wanted
14 to extend my apologies. I think that there was a mix-up in the addresses
15 indeed between the two applications, but as for the remainder I shall
16 refer this to Mr. Re for further instructions.
17 JUDGE ORIE: You interrupted me when I was delivering a decision,
18 but since it was to apologise, I do not mind that much.
19 So therefore the Chamber will now give its decision on the
20 admission of the exhibits P1205 through to P1209 and the parties will, as
21 I just said, will recall that on the 31st of October, 2007, yesterday, at
22 the start of the current witness's testimony, the Chamber announced that
23 the Prosecution had shown goods cause for adding these six, six documents
24 longer to its 65 ter exhibit list. You'll find that at transcript page
25 10056. The Prosecution then tendered five out of these six documents
1 which were subsequently marked for identification as Exhibits P1205
2 through to P1209. The Chamber informed the parties that it would decide
3 on the admission of these documents once it had had a time to review their
5 The Chamber has now thoroughly reviewed the contents of these
6 documents. In doing so, the Chamber has been mindful that the translation
7 of these documents were only disclosed to the Defence on the evening of
8 the 29th of October, less than 48 hours before they were tendered by the
9 Prosecution. The Chamber, however, stresses that late disclosure is not a
10 bar to admission. However, the Defence should be allowed sufficient time
11 to investigate and properly prepare to cross-examine on the materials.
12 With regard to the documents in question, the Chamber finds that
13 the content for which they are being introduced is not pivotal to the case
14 and adds little to the evidence already before the Chamber. Therefore,
15 rather than recalling the witness once the Defence has had time to
16 properly prepare to cross-examine on these documents, the Chamber in this
17 case denies the admission of documents P1205 through to P1209.
18 Mr. Emmerson, are you ready to cross-examine the witness?
19 MR. EMMERSON: I am, yes.
20 JUDGE ORIE: Mr. Gojkovic, then I'd like to remind you, as I
21 always do if a witness returns the next day, I'd like to remind you that
22 you're still bound by the solemn declaration that you've given at the
23 beginning of your testimony. You'll now be cross-examined by
24 Mr. Emmerson, who is counsel for Mr. Haradinaj.
25 Mr. Emmerson, you may proceed.
1 MR. EMMERSON: Thank you.
2 WITNESS: RADOMIR GOJKOVIC [Resumed]
3 [Witness answered through interpreter]
4 Cross-examination by Mr. Emmerson:
5 Q. Mr. Gojkovic, can I ask you, please, to turn to paragraph 14 in
6 your witness statement, and just so that we're sure that there's no
7 translation difficulty, could you read out for us, please, in B/C/S the
8 last sentence in paragraph 14 so that the interpreters can give us a live
9 translation of it.
10 JUDGE ORIE: Mr. Emmerson, exceptionally I'll allow you to do it,
11 but it's -- if there's any doubt as far as translation is concerned, then
12 it's usually not the interpreters who are supposed either to correct or to
13 verify the -- that's a kind of a standard rule. Nevertheless, I will
14 allow you to ask the witness to read this out.
15 MR. EMMERSON: It's simply foundation to make sure that I don't
16 put a question on a false premise.
17 JUDGE ORIE: Okay. If that's the purpose, please proceed.
18 MR. EMMERSON:
19 Q. Could you just read that last sentence out for us, Mr. Gojkovic.
20 JUDGE ORIE: Please do so, Mr. Gojkovic.
21 THE WITNESS: [Interpretation] "The police did not dare go into
22 parts of the Dukadjini area, such as Pec, Kapesnica, Drenica, Jablanica,
23 Djakovica, and other villages." As I said yesterday, some of the
24 formulations may have been unfortunate perhaps in this translation. It
25 should have read: In other parts, such as Pec, Kapesnica, Drenica,
1 Jablanica, Djakovica, and other villages.
2 MR. EMMERSON:
3 Q. I'm just trying to understand --
4 JUDGE ORIE: I now do understand that the translation is correct
5 but --
6 MR. EMMERSON: The translation is correct.
7 JUDGE ORIE: -- The witness now says that his formulation of -- in
8 the 92 ter statement was not perfect.
9 MR. EMMERSON:
10 Q. You weren't intending to say that the police had any difficulties
11 entering Pec and Djakovica?
12 A. The police had problems. It reads here that they did not dare go
13 there because of such problems.
14 Q. Even in Pec?
15 A. Yes, yes. Particularly in the settlement of Kapesnica.
16 Q. And Djakovica as well?
17 A. Yes.
18 Q. We know that there was a military and police presence based in
19 Pec, Mr. Gojkovic.
20 A. Yes, yes.
21 Q. And a police station in Djakovica.
22 A. Yes.
23 Q. Which remained open throughout 1998; is that correct?
24 A. Yes, it did remain open; however, it had to work with a number of
25 dangers that were present there on a daily basis, fire-arms were being
1 discharged regularly, ambushes organized, and so on and so forth.
2 Q. Yes, I see. Let me see if I've understood. Are you intending to
3 suggest that the police did not enter the municipality of Pec outside the
4 town and the municipality of Djakovica, or are you intending to convey
5 here that the police didn't dare to enter the towns themselves? It's a
6 little difficult to follow.
7 A. I'll try and clarify. The settlement or neighbourhood of
8 Kapesnica is a part of Pec, just above Pecka Bistrica. Exclusively or
9 perhaps 99,9 per cent inhabited by Albanians. There may have been a few
10 Serbian houses. The same goes for Drenica and Jablanica. In Djakovica
11 there were less than 1 per cent of Serbs, Montenegrins, and other
12 nationalities. There were also neighbourhoods and settlements exclusively
13 populated by Albanians.
14 Q. Thank you. I'm going to move on unless the Trial Chamber wants
15 the matter pursued any further.
16 Can we look briefly at paragraph 38 of your witness statement,
17 Mr. Gojkovic, where you refer to having been present during the recovery
18 of human remains and items of clothing in a place called Bandera in
19 Dasinovac. Now, we have seen a videotape of a number of men including,
20 so we have been told, yourself in the area of Bandera during the course of
21 the recovery of these items. And also on the video we're able to see --
22 I'm not going to play it because we've all watched it before - a man who
23 is apparently in handcuffs and under detention who has been identified by
24 other witnesses as a man called Zenelj Alija. Do you remember there being
25 a person who was in detention, police detention, present at the time you
1 were there in Bandera?
2 A. I claim it for certain that once I was at the location during the
3 on-site investigation, I saw no detained persons whatsoever -- at least I
4 did not notice anyone. I think I also owe you an explanation, and by your
5 leave I'd like to read out something.
6 JUDGE ORIE: Could you tell us what you're reading from.
7 THE WITNESS: [Interpretation] An excerpt from the Law on Criminal
8 Procedure, authorising various bodies of the Ministry of the Interior to
9 collect information even from people who are currently detained. Whether
10 the procedure and treatment of that person was respected if such a person
11 indeed existed there can be seen from the contents of the documents that
12 had to do with those activities, with the people who participated.
13 Perhaps I can read out the part of the law that refers to that if
15 JUDGE ORIE: I do not know whether the legal issue is something
16 that bothers Mr. Emmerson at this moment, so thank you for your offer but
17 Mr. Emmerson will put, I take it, some precise questions to you.
18 MR. EMMERSON:
19 Q. If you can just focus, Mr. Gojkovic, not on the law that you're
20 looking at but on the question that I'm asking you. And your evidence as
21 I understand it is whilst you were there at Bandera there was to your
22 knowledge no person who was arrested or detained present there at the same
23 time. Is that right?
24 A. Yes, that is right. When I was there on the first day, the 9th of
25 September, 1998, there was nobody. Whether anyone was detained before
1 that, I cannot tell you.
2 Q. I don't want you to get confused, Mr. Gojkovic. Did you not say
3 in your 92 ter statement that it was the 10th of September - have I
4 misunderstood? - the 10th of September when you went to Dashinoc, Bandera?
5 A. Yes, on the 10th of September; however, the on-site investigation
6 concerning the entire incident, including Lake Radonjic, Dasinovac, and
7 the farm was initiated on the 9th of September and concluded on the 19th
8 of September.
9 Q. Yes, just --
10 A. There's a number of documents testifying to that.
11 Q. Don't worry about the documents for the moment, Mr. Gojkovic, and
12 don't worry about the 9th of September or anywhere else. I was asking you
13 about the 10th of September when you say you were present at Dashinoc,
14 Bandera, and for the absolute clarity of the record, to your recollection
15 no detained person was there at the same time you were, is that right, in
17 A. As I've said already - and I can only repeat - I do not remember
18 seeing such a person --
19 Q. Very well --
20 A. -- when we were carrying out the on-site investigation at Bandera.
21 Q. Very well. And could you turn to paragraph 90, please, in your
22 statement. Do you have paragraph 90 there?
23 A. Yes, I do.
24 Q. Now, in paragraph 90 you refer to annex 10, and I'll just read it
25 for the record so that we're clear. You say: "Documents relating to two
1 people who pointed out the Lake Radonjic scene to the police are at annex
3 Now, pause for a moment. Annex 10 to your witness statement
4 contains a number of documents including a power of attorney for the
5 representation of two men called Zenelj Alija and Naser Kalamashi. My
6 question is: How did you know that these were the two people who had
7 pointed out the Lake Radonjic scene to the police?
8 A. I will try and answer this question. As I stated yesterday, as of
9 November 1998, I was elected president of the district court in Pec. As
10 of the moment when the procedure was initiated in this case, all
11 documentation that was requested by the district court in Pec went through
12 my hands, since I headed that institution. Therefore, I forwarded the
13 Kalamashi case and others. There are names there of judges and everyone
14 else involved. It went through the Ministry of Justice or the Ministry of
15 Foreign Affairs, through the office in Belgrade, to the people responsible
16 at this Tribunal. As for any other activities, who did what, what judge
17 was involved, when those persons were first detained, whether by the SUP
18 or the court, there must be written evidence on all that. There should be
19 a decision on detention, on the extension of detention, and so on and so
21 Q. Yes. Mr. Gojkovic, again, if I can just focus the question and
22 your answer down a little bit, please. My question was specifically how
23 did you personally come to know that these two men were said to have
24 pointed out the Lake Radoniq canal to the police? Simply how did you come
25 to know that?
1 A. I came to know that at the point when they asked for the case file
2 and when they told me why they were asking for it. Besides that, during
3 the hearing before me there was a discussion about adducing evidence to
4 the effect that there was some persons who pointed to where the crime site
5 was. It was when I was assigned that case that this discussion was
6 carried out. I had no way of coming to know this through any other
8 Q. Pause, please. Thank you. So it was during the hearing for the
9 detention of these men that you found out that they had allegedly pointed
10 the canal out; is that right?
11 A. Allow me to explain this. First I was asked about how the organs
12 of the interior came to arrive at the crime scene. I was asked whether I
13 asked the members of the Ministry of the Interior about this, and I will
14 answer this question. I had never learnt this from them nor did I have
15 the authority to ask any such information from them. The appropriate
16 legislation prescribes what the Ministry of the Interior does, what the
17 judiciary does, and what ultimately an investigating judge does.
18 Q. Mr. Gojkovic, could I just ask you to stop for a moment, please.
19 On the transcript, page 10, line 5, your answer is recorded as
20 follows: "Besides that, during the hearing before me there was a
21 discussion about adducing evidence to the effect that there was some
22 persons who pointed to where the crime site was."
23 What is the hearing that you are there referring to, please? Just
24 answer that question for me. What hearing were you there referring to?
25 A. Can you put the question once more to me. Is that my statement,
1 my testimony, page 10, line 5, or are you referring to some written
2 document? So is that my statement, is that my testimony?
3 JUDGE ORIE: It's your testimony today, Mr. Gojkovic.
4 Mr. Emmerson read from the transcript that is made immediately once you've
5 spoken words. Perhaps I -- perhaps you read it again so that it's in the
7 MR. EMMERSON:
8 Q. You said: "Besides that" --
9 JUDGE ORIE: When I said in the context --
10 MR. EMMERSON: I'm sorry.
11 JUDGE ORIE: -- Perhaps you repeat the previous line as well.
12 MR. EMMERSON: Would Your Honour just give me a moment.
13 Q. The question I asked you was how did you come to know about these
14 men having been said to have pointed out the canal to the police.
15 You replied: "I came to know that at the point when they asked
16 for the case file, and when they told me they were asking for it. Besides
17 that, during the hearing before me there was a discussion about adducing
18 evidence to the effect that there was some persons who pointed to where
19 the crime site was. It was when I was assigned that case that this
20 discussion was carried out. I had no way of coming to know this through
21 any other sources."
22 My questions, Mr. Gojkovic, are, first of all: What was the
23 hearing; and secondly: When were you assigned the case?
24 A. It follows from what I just heard that there must have been a
25 misunderstanding. I was referring to the case -- this particular case
1 where I'm appearing right now, Ramush Haradinaj et al. It was in relation
2 to this particular case that I was called by the prosecutors from their
3 office in Belgrade. Among other matters, there was a discussion there
4 about the fact that there was some evidence about persons who indicated
5 where the crime scene was. In response to that I said that I didn't know
6 anything about that. Later on a case file was asked for and it was
7 delivered. I don't know anything more about it. The file contains
8 information about when these persons were placed into custody, for how
9 long, when they appeared before a court of law, and how the proceedings
10 went on from there. That's all I know. If you want me to repeat about
11 that particular case involving the individuals, who pointed to where the
12 crime scene was, I have no knowledge. So I have no knowledge about that.
13 I allow for the possibility that if their detention was extended after the
14 18th of November, 1998, at the point in time when I was elected president
15 of the court, I know that I was one of the judges on the bench. I was in
16 fact the presiding judge.
17 Q. So are we to understand the position to be this, Mr. Gojkovic,
18 that before being asked to look at papers to assist the Office of the
19 Prosecutor, you had no idea who had pointed the canal out to the police;
20 is that the position?
21 A. I'm categorically stating again that I neither know who reported
22 this to the police nor did I ask them about it. Pursuant to the criminal
23 procedure law, the police have their authorities and their method of
24 proceeding, and I know that pursuant to that legislation they are allowed
25 to keep a person in custody for three days. Upon the expiry of the three
1 days, they can either release that individual or file a criminal report
2 against that person, from which point this matter lies within the hands of
3 the prosecutor's office, or rather, the court. Should the prosecutor ask
4 for an investigation to be carried out, the court would act within the
5 legislation, collect evidence, hear witnesses. And at the end of that, or
6 rather, the police force would be doing the investigation, interviewing
7 suspects, gathering evidence, at the end of which process they would refer
8 the matter to the relevant prosecutor's office.
9 JUDGE ORIE: Mr. Gojkovic, if you carefully listen to the
10 questions of Mr. Emmerson, you'll find that he's more interested in
11 hearing more about factual situation at the time rather than what was
12 within whose competence at that moment.
13 MR. EMMERSON: Yes.
14 JUDGE ORIE: So would you please very much focus your answers,
15 answers on what Mr. Emmerson ask you.
16 And Mr. Emmerson is invited if he quotes literally from the
17 record, especially if it's the testimony of the witness, that he should do
18 it precisely. The word "why" disappeared when you read. Please proceed.
19 MR. EMMERSON: Oh, I'm sorry, that must have been my mistake.
20 Q. Yes. You remember, Mr. Gojkovic, making a statement to the
21 Prosecution in this matter in May of 2006?
22 A. That's correct.
23 Q. I think it was a statement taken in English but translated to you
24 into B/C/S; is that right?
25 A. Yes.
1 Q. Without bringing it up on the screen, because it's a relatively
2 short passage from paragraph 34 of the statement that I want to ask you
3 about, you say in your witness statement this, you say:
4 "I don't know who informed the SUP that the bodies were at Lake
5 Radonjic. It is not the responsibility of the investigative judge to ask
6 the police how they discovered the bodies."
7 And then a little later on you say this: "I never heard later,
8 either directly or indirectly, if the scene had been pointed out by
9 someone to the police."
10 Now, does that accurately record the position in fact,
11 Mr. Gojkovic?
12 A. This is precisely what I'm confirming to you today. As I attended
13 the scene and in the period after that I had never asked the police force
14 who had given them the indication as to where the crime scene was. I had
15 never asked them that and I don't know this today. I didn't ask them that
16 because I did not have the authority to do so. It is up to others to
17 assess whether they in performing their duties have been adhering to the
19 Q. And just so that we understand, you say that despite being
20 appointed as the investigative judge for this crime scene, it was not part
21 of your function to discover how it had been found by the police?
22 JUDGE ORIE: Before you answer that question.
23 Mr. Dutertre.
24 MR. DUTERTRE: [Interpretation] Objection because the question was
25 put to the question [as interpreted] on several occasions in various
1 forms, indeed, but it boils down to the same thing. And the witness has
2 already answered and has repeated that he had already provided an answer.
3 JUDGE ORIE: I think the last answer -- the witness several times
4 has expressed that it was not within his authority to question anyone
5 about how they went there. I think he spontaneously included this in his
6 answer. Mr. Emmerson is entitled to further explore the basis for that
7 part of the answer.
8 Please proceed, Mr. Emmerson.
9 MR. EMMERSON:
10 Q. I simply want you to clarify for me, Mr. Gojkovic, yes or no,
11 whether I have correctly understood your evidence, that despite being
12 appointed as the investigative judge for this crime scene, you say it was
13 not part of your function to make inquiries about how the police had
14 discovered it?
15 A. This is my answer: I was not appointed an investigating judge.
16 An investigating judge is designated for every calendar year. This is the
17 way we proceed. That's number one. Number two, I don't know because I
18 never asked, and I never endeavoured to learn who told the police where
19 that site was, where a very, very tragic event happened. If you'll allow
20 me to, I will read out provision of the law regulating the authorities of
21 an organ of the SUP.
22 JUDGE ORIE: Mr. Gojkovic, I think what Mr. Emmerson would like to
23 know is that whether in your capacity if you would have wished to do so,
24 perhaps you may have had no reasons to do it, but if you had wished to ask
25 the police officers how -- how they learned that there would have been a
1 crime scene at the Lake Radonjic canal, whether you had the competence to
2 ask that to the police officers. That's I think the question.
3 THE WITNESS: [Interpretation] This is my categorical statement. I
4 did not have the authority under the law to put such a question. Let me
5 explain. The SUP organs have their methods of discovering and detecting
6 and uncovering the perpetrators of criminal offences.
7 MR. EMMERSON:
8 Q. And if I may follow that up then, leaving aside your legal
9 authority, in all the time that you were down there no one mentioned it to
10 you either by chance in conversation; is that right?
11 A. Yes, that's right. Nobody mentioned that, including me.
12 Q. Thank you. If a man in detention had been present with you at
13 Bandera, would you expect to have been told that this was a person in
14 custody being brought to the scene to point out a crime scene?
15 A. My apologies, can you repeat the question.
16 Q. If the position is, Mr. Gojkovic - and obviously we have other
17 evidence in this case - if the position is that there was, in fact, a
18 person in custody present at the same time as you were at Bandera on the
19 10th near Dasinovac, a person who was in custody having allegedly pointed
20 out the crime scene to the police and if he was there at the same time as
21 you were, would you expect to be informed about who he was?
22 A. Under the assumption that that individual was present at the time
23 when we were conducting an on-site investigation at Dasinovac, I
24 categorically state that I would not be told that that individual was
25 present. This again for the reasons I stated before. That's why I
1 believe it would be a good thing to read out the relevant provision from
2 the Law on Criminal Procedure regulating the way in which the organs of
3 the interior proceed in relation to persons in detention.
4 Q. Mr. Gojkovic, don't worry about the procedure. If you would like
5 at the end of your testimony to give us a list of legislative provisions
6 for us to consult, then please do so. The questions I'm asking you
7 essentially are questions of fact and practice. Again let me put one
8 further question to you in this regard. If you had seen a man there in
9 handcuffs or under detention, would you not have asked what he was doing
11 A. No, no. Because that individual would not yet be within our
12 jurisdiction. He was still within the jurisdiction -- he would still be
13 within the jurisdiction of the MUP organs.
14 Q. Thank you. Could we look at annex 9, please, to your witness
15 statement which has been provisionally marked for identification as P1200.
16 MR. EMMERSON: We've had some discussions with the registry about
17 practicalities. May I indicate to the Trial Chamber that this document or
18 this annex consists of two documents, an indictment against
19 Bekim Kalamashi, Zenelj Alija, and others, and then a court judgement in
20 respect of the same group of individuals.
21 Q. Could you turn in your file, Mr. Gojkovic, to annex 9, please.
22 MR. EMMERSON: And if we could start by pulling up page 1 just to
23 identify the indictment. Thank you.
24 Q. We can see -- I think perhaps you can just help us with this.
25 This is an indictment dated the 5th of March, 1999, against a number of
1 named individuals, the first of whom is Zenelj Alija and the second of
2 whom is Bekim Kalamashi. Do you see that?
3 A. Yes, yes.
4 Q. And of course by this time you had been president of the district
5 court in Pec for something like about five months, hadn't you?
6 A. Yes.
7 MR. EMMERSON: If we could turn briefly to the next page in each,
8 so it's page 2 of the B/C/S, page 2 of the English.
9 Q. Do we see after the list of names a short description of the
10 reasons for the indictment under the heading: "Because," correct? A
11 short summary of what they're accused of.
12 A. Yes.
13 Q. Thank you. The -- just bear with me a moment. Wait for the
14 question, if you would.
15 MR. EMMERSON: The English, I'm afraid, spreads over two pages at
16 this stage. The B/C/S section that appears in the right-hand section of
17 the screen is partial -- partially translated on the left-hand side of the
19 Q. You've read these documents, Mr. Gojkovic, haven't you?
20 A. Yes.
21 Q. I just want to take it shortly without going through the detail.
22 This was a group of men who had been arrested in the village of Kodralija
23 at the beginning of September; is that right?
24 A. I can't say exactly where they were detained. It's in the file,
25 and the criminal offence was committed in the village of Kodralija during
1 the month of May 1998, in the manner as described therein. This is a
2 description of the criminal offence under Article 136, and that's
3 conspiring for enemy activity.
4 Q. Yes. We'll come to that in a moment. If I can just summarize the
5 allegation. Essentially they're charged under Article 136(2), which I
6 think is the offence that you refer to in paragraph 11 of your 92 ter
7 statement in which you describe it as a charge of persons coming together
8 to take part in hostile activities for terrorist crimes, correct?
9 A. I'm not describing it, it's the prosecutor describing the offence
10 because the prosecutor issues the indictment.
11 Q. It's a translation problem.
12 JUDGE ORIE: Yes, there seems to be a misunderstanding.
13 Mr. Emmerson takes you back to your own statement where you summarize or
14 describe what these people were charged with, of course charged with by
15 the prosecution at that time, but you describe it --
16 MR. EMMERSON: May I just correct that to this extent.
17 JUDGE ORIE: Yes.
18 MR. EMMERSON:
19 Q. The passage at paragraph 11 describes the nature of that offence
20 as a common charge, but it's the 136(2) criminal offence. So it's an
21 offence of associating to take part in hostile activities. And we can
22 see, I think, from the indictment that the allegation is that, in short,
23 these men joined the KLA, brought fire-arms in from Albania, and stood
24 guard in the village of Kodralija. Would you agree that that's a fair
1 A. That's absolutely correct.
2 Q. Thank you. Now if we could just turn, please, to the statement of
3 reasons which is on the following page of the English text, so the next
4 page of the English text, and appears on the following page also of the
5 B/C/S text. Now, under the heading "statement of reasons," we can see a
6 paragraph that reads:
7 "The investigation, conducted by the investigating judge of the
8 district court in Pec for criminal case number Kio No. 182/98, has
9 established the facts from which it follows that the accused Zenelj Alija
10 and the others have committed the criminal offences they were charged with
11 as per the disposition of this indictment."
12 My first question, Mr. Gojkovic, is where it refers to the
13 investigating judge, can you tell us who that was?
14 A. The investigating judge who conducted the investigation?
15 Q. Yes.
16 A. That's stated in the case file. I can't really remember. There
17 were many cases.
18 Q. Yes, I see. Was it you?
19 A. I can't remember that either. If there exist minutes or records
20 of this particular case, then I would have had to be the one signing them
21 if that was the case.
22 Q. You have no recollection of whether it was you or not; is that the
24 A. As I said, I don't remember. The case file tells you exactly who
25 the investigating judge was because you can -- there you have the
1 investigation-related documents, trial documents, and of course the file
2 of the appeals proceedings. There you have the name of the investigating
3 judge and of course also the judges on the bench, including the presiding
4 bench -- the presiding judge of the bench. And the case file exists and
5 it can be obtained at any time.
6 Q. We'll come to the judgement in a moment or two. Do you now,
7 Mr. Gojkovic, have any recollection of a group of men being arrested in
8 Kodralija and charged in respect of this indictment? Is that anything
9 you've got any independent recollection of at all?
10 A. I remember what I said before, and I'll repeat it again. I
11 remember having -- having been dealing with a great deal of reports to
12 this Tribunal, to the Belgrade office, to the Ministry of Justice in
13 Serbia, because I recall that we had to submit monthly, bimonthly,
14 sixth-monthly reports --
15 JUDGE ORIE: Mr. Gojkovic, we are limited in our time. There's a
16 clear question whether apart from what we find in documents which would
17 allow us to reconstruct the positions at the time, whether you have any
18 memory at this moment on this specific case, including a group of
19 youngsters, I think they were relatively young men, involved in crimes
20 committed in Kodralija. Do you have any recollection apart from the
22 THE WITNESS: [Interpretation] I don't remember.
23 MR. EMMERSON:
24 Q. Very well. Thank you. If we could just drop down to the next
25 paragraph briefly, we can see "the accused Zenelj Alija," it says, "when
1 questioned in the course of the investigation," and then it sets out what
2 he's recorded as having said. When those words appear in an
3 indictment "when questioned in the course of the investigation," does that
4 mean questioned by the investigating judge?
5 A. Yes.
6 Q. Would they have come to the investigating judge from police
8 A. I've explained this already, but let me tell you again. It's the
9 MUP bodies that take the statement, and they submit the criminal report to
10 the prosecutor's office.
11 Q. [Previous translation continues]...
12 A. As soon as there is a request for investigation the investigating
13 judge --
14 Q. I think it might be very helpful for the purposes of time if you
15 would be kind enough just to watch me, and if you're not answering the
16 question I'm asking you I'll let you know with a wave of the hand. The
17 question I'm asking you is a simple one. When somebody -- and I think
18 you've looked at this indictment and already expressed an opinion to
19 Mr. Dutertre yesterday about this in relation to these individuals. When
20 these individuals were brought before the investigating judge for
21 questioning, would they have been in custody?
22 A. If they were in custody, they had to, or rather, if they had been
23 in custody, they would have had to be -- to have been brought over from
24 custody, how else?
25 Q. And after the questioning, they would be returned to the custody
1 of the MUP, would they?
2 A. Yes, yes.
3 Q. Very simple --
4 A. Not the MUP, they would be held at the investigative prison.
5 Q. Very simple, exactly. If we can just look at the following
6 paragraph, for which we need to look at the next page of the B/C/S, but it
7 remains on the same page of the English translation. We can see -- and if
8 I can just note it for the record that the accused Bekim Kalamashi when
9 questioned during the investigation has completely denied having been a
10 member of the KLA, correct?
11 A. That's what it reads.
12 Q. Thank you.
13 A. In the indictment.
14 Q. In the indictment, exactly.
15 MR. EMMERSON: Now if we can move, please, to the judgement which
16 in the annex I think begins in the B/C/S on page 6, Mr. Registrar.
17 Q. And I can take this very briefly. You read this document as well
18 presumably, Mr. Gojkovic?
19 A. Yes.
20 Q. Thank you. In short, this group of men were each convicted of the
21 charge against them of membership and association with the KLA, correct?
22 A. Yes, yes.
23 Q. And if we can just move to the statement of reasons in respect of
24 that which appears - just bear with me just a moment - I'm sure you can
25 find it a few pages further on in the B/C/S version. Do you have it
1 there? I think it should be page 11 for the e-court and the B/C/S --
2 A. Yes, yes.
3 Q. And page 12 of the English translation, that's at page 15.
4 A. Very well.
5 Q. Try to keep it side by side.
6 MR. EMMERSON: If we could look, please, go over the page in the
7 English but remain where we are in the B/C/S.
8 Q. We can see in the second paragraph of the statement of reasons
9 that the defence advanced by Bekim Kalamashi was a denial of membership of
10 the KLA, correct? It's the second paragraph under the statement of
11 reasons. You can see it on the screen in front of you, Mr. Gojkovic, if
12 it's easier, second paragraph there. Sorry. Can I stop you for a moment
13 because it's not a very complicated question. If you look at the second
14 paragraph, Mr. Gojkovic, does it record on the statement of reasons that
15 the accused Bekim Kalamashi in his defence has explained that he has never
16 been a member of the KLA of the village of Kodralija? Is that what it
17 says? Mr. Gojkovic, can I suggest that you look on the screen in front of
18 you. Look at the second paragraph on the right-hand side of the screen.
19 Do you see that?
20 A. Yes.
21 Q. Thank you. And then finally in relation to this judgement, if we
22 could look, please, and I'm just going to take it on the English, we need
23 to move to the following page. And in the B/C/S - bear with me one
24 moment - yes, if we can just look to the bottom of the English side of the
25 screen for the moment. And in the B/C/S, I'll just have to give you a
1 page number in just one moment. Yes, it's the bottom of the following
2 page in B/C/S. We can see that there is there recorded the alleged
3 partial confession given by Zenelj Alija in the pre-trial proceedings,
4 correct? Do you see that?
5 A. Yes, yes.
6 MR. EMMERSON: If we could just look, please, to the bottom of
7 that paragraph, so in both documents we need to move over one page to the
8 last sentence of the paragraph dealing with Zenelj Alija.
9 Q. We can see that, just if you look at the very last sentence of
10 that first paragraph on page 8 -- again, Mr. Gojkovic, it might be easier
11 for you to look at the screen, it's the right-hand side of the screen, the
12 last four lines of the B/C/S of the paragraph that appears there, we can
13 see that at his trial Mr. Alija maintained that what had been said -- I'll
14 read the English translation as it appears:
15 "At the trial the accused has explained, apart from his previous
16 statement, that he said all that in fear of police and that on the
17 critical occasion he has not joined the 'KLA.'" .
18 Now, that formulation, and I won't go through each example,
19 appears in the judgement in respect of a number of the individuals there
20 that statements had been made on the grounds of fear of the police. But
21 there appears to be no record in the judgement of what the basis for that
22 was or what it was that the accused was saying had been done to them to
23 cause them to be in fear of the police. My question is: Would you
24 normally expect there to be a record of the grounds for such a fear being
1 A. In the judgement what is stated there is the position of his
2 defence according to the Law on Criminal Procedure in our country, an
3 accused can remain silent, in which case the court is duty-bound to warn
4 him that that may worsen his position. He can lie or tell the truth. In
5 all three cases the court is duty-bound to check all defence allegations
6 and compare that to appropriate evidence.
7 Q. Yes. For example, we heard evidence from one of the police
8 officers who handled these men that Bekim Kalamashi and certainly some of
9 this group were brought into the police station in their underwear. Is
10 that the sort of thing you would expect a court to inquire into when
11 allegations of this kind are raised in someone's defence?
12 A. If that is stated, such allegations had to be checked and
13 verified. If somebody resorted to such activities, they had to be held
15 JUDGE ORIE: Mr. Dutertre, the witness has started already
16 answering the question.
17 MR. DUTERTRE: [Interpretation] Yes, sorry could you tell us which
18 line you were talking about to facilitate everyone's work. Thank you.
19 MR. EMMERSON: 6626, lines 11 to 13, the testimony of
20 Mr. Avramovic.
21 Q. So if that were the position you would expect that to be recorded
22 in the judgement, Mr. Gojkovic, would you not?
23 A. When an accused changes his statement, the court needs to ask the
24 accused why that has happened and it has to be supported.
25 JUDGE ORIE: Mr. Gojkovic, I think Mr. Emmerson would like to know
1 where the judgement says that at trial the accused have -- the accused in
2 this case has explained that in fear of the police he admitted certain
3 matters which he doesn't admit anymore in court, whether the court would
4 have further inquired into what made him to fear the police, what had
5 happened that he was fearful, whether it was -- could you tell us whether
6 that was usually and perhaps specifically in this case explored.
7 THE WITNESS: [Interpretation] To repeat, a confession or denial of
8 guilt when interrogated by the police has no effect on the proceedings
9 itself. During the proceedings, starting with the investigating judge and
10 ending with the main hearing, the accused can state freely what his
11 position is.
12 JUDGE ORIE: That was not my question, Mr. Gojkovic. What I asked
13 you is that if someone comes in court and says: I gave a false statement
14 to the police because I was afraid, would you then further inquire why
15 that person was afraid or said that he was afraid?
16 THE WITNESS: [Interpretation] Your Honour, an accused can confess
17 anything to the police, for example, out of fear or pressure, but once
18 before an investigating judge he can deny all that. He can say: All that
19 I had said is not true, and then he can say what he believes to be true.
20 After that, the court needs to compare that with existing evidence and to
21 conduct a hearing or inquire into the treatment of the accused and in
22 order to arrive at the truth.
23 MR. EMMERSON: Yes --
24 JUDGE ORIE: And was there any inquiry into the treatment of the
25 police here where this accused says that he gave his statement out of fear
1 and not in accordance with the truth?
2 THE WITNESS: [Interpretation] I cannot tell you anything about
3 that. Such data should be contained in the case file. The judge in
4 charge of the case was duty-bound by the law to ask the accused on these
5 circumstances, to pose questions.
6 JUDGE ORIE: Mr. Gojkovic, whether we could find it in the file is
7 another matter, but we would like to know whether you have any memory
8 specific on this. And it turns out that you could not answer that
9 question would consulting the documents.
10 Please proceed.
11 MR. EMMERSON:
12 Q. Can I ask you one question on that subject, Mr. Gojkovic. Did you
13 ever come across in all your time as an investigating judge in Kosovo, did
14 you ever come across allegations that people were beaten in police
15 custody, then brought before the investigating judge under threat by the
16 police that unless they repeated what they said in the police station they
17 would be beaten again when they got back there? Did you ever come across
18 such cases where that was alleged?
19 JUDGE HOEPFEL: I think this is a difficult question because you
20 would presuppose that the person would go back after --
21 MR. EMMERSON: Well --
22 JUDGE HOEPFEL: -- Being interrogated. And this is what the
23 witness denied.
24 MR. EMMERSON: No I think we may be at cross-purposes. I think
25 the evidence of the witness is that he would go back.
1 JUDGE HOEPFEL: I think he --
2 MR. EMMERSON: Well then we should clarify that.
3 JUDGE HOEPFEL: Yes.
4 MR. EMMERSON: My understanding of the witness's testimony,
5 without having a transcript in front of me, because I sought to clarify
6 that very question.
7 JUDGE HOEPFEL: It was a little quick.
8 JUDGE ORIE: I'll find a line and a page for you.
9 JUDGE HOEPFEL: I wanted to draw your attention to that last piece
10 of the answer.
11 MR. EMMERSON: It may be that the answer wasn't as clear as I had
12 recalled it.
13 JUDGE HOEPFEL: The answer was clearly the opposite. Just a
15 JUDGE ORIE: We'll check that.
16 MR. EMMERSON:
17 Q. Mr. Gojkovic, can I just put the question to you again because
18 there seems to be potential confusion.
19 JUDGE HOEPFEL: It's a compound question.
20 MR. EMMERSON:
21 Q. When somebody was arrested on a charge under Article 136 of
22 terrorism and brought before the investigating judge, after the
23 questioning was finished, assuming there was thought to be a case against
24 them, what would happen to them? Where would they go?
25 A. After the hearing, the investigating judge decides whether there
1 is any legal foundation to conduct further investigation into prolonged
2 detention. If there is a request in place by the prosecutor to keep the
3 person in detention, a decision is made on detention of up to one month,
4 and that person is then returned to the investigating prison.
5 JUDGE ORIE: Mr. Harvey.
6 MR. HARVEY: I just wanted to noted that the question that was
7 asked by Mr. Emmerson at page 23, line 4, and the answers follow from
8 there up until line 11 in accordance precisely with Mr. Emmerson's
9 recollection just now.
10 JUDGE ORIE: Yes, the -- what --
11 JUDGE HOEPFEL: [Microphone not activated]
12 THE INTERPRETER: Microphone, please.
13 JUDGE HOEPFEL: Line 11 was expressly that the witness then said
14 not the MUP, they would be held at the investigative prison, and this is
15 said now.
16 MR. EMMERSON:
17 Q. Who would be responsible for holding them at the investigative
18 prison, Mr. Gojkovic? Who would take them there and who would hold them
20 A. The people who work at the pre-trial detention.
21 Q. And who were they, please?
22 A. Sorry?
23 Q. Who are they?
24 A. Employees of the district court of Pec, its pre-trial detention
1 Q. I see. They're not MUP officers? They're not employed by the
3 A. No, no.
4 Q. I see.
5 JUDGE ORIE: Then the next question perhaps relevant,
6 Mr. Emmerson, would be: Once they were then taken to -- to the
7 investigative prison, would the MUP have access to that prison to further
8 interview those accused or would they be excluded from further approaching
9 the accused?
10 THE WITNESS: [Interpretation] The law strictly prescribes that
11 without an approval of the investigating judge in charge, not a single
12 employee of the SUP, be it an inspector or another official, cannot or is
13 not to have any access to the accused.
14 JUDGE ORIE: And was such permission often given? Was that
15 routine or was that exceptional?
16 THE WITNESS: [Interpretation] As far as I can remember, there was
17 some instances, but the procedure was followed in general. If someone was
18 in breach of the procedure, they should be held accountable; however, the
19 law is clear on that. Throughout my career, I never allowed for such
20 behaviour and no one asked me to do anything regarding that.
21 JUDGE ORIE: Mr. Gojkovic, the law says, as far as I understand
22 you, that you need permission. Now, my question was whether such
23 permission for SUP officers to further interview an accused when he was in
24 an investigative prison, whether that was frequently granted or whether
25 that was exceptional. I'm talking about frequency rather than about
1 violating rules.
2 THE WITNESS: [Interpretation] As I said, it only happened in
3 exceptional circumstances.
4 JUDGE ORIE: Thank you.
5 Please proceed, Mr. Emmerson.
6 MR. EMMERSON:
7 Q. And finally on this topic, can I ask you this: Did you ever come
8 across cases where it was alleged that people had been threatened by the
9 officers who beat them to repeat what they had said to the police when
10 they appeared before the investigating judge? Is that something that you
11 became aware of as an allegation that was made at any time in general?
12 JUDGE ORIE: Mr. Dutertre.
13 MR. DUTERTRE: [Interpretation] I'd like to object to this
15 MR. EMMERSON: [Previous translation continues]...
16 MR. DUTERTRE: [Interpretation] The witness has stated that as far
17 as the relevant case is concerned, that he remembered this agreement was
18 not given, but he cannot answer in general terms.
19 JUDGE ORIE: Mr. Emmerson --
20 MR. EMMERSON: In the interests of time I'll move on.
21 JUDGE ORIE: Yes, please proceed.
22 MR. EMMERSON: Because I have one or two other topics to cover.
23 I'm conscious of the time I've been given.
24 Q. One or two questions about the canal itself, please, if I may; and
25 then I'll just come back to one other issue of procedure. Paragraph 30 in
1 your witness statement, could you turn to that, please, and help us with
2 that for a moment.
3 JUDGE ORIE: Yes, Mr. Dutertre.
4 MR. DUTERTRE: [Interpretation] Yes, Your Honour, we've changed
5 topic, but sorry. I was not quite exactly translated. Lines 23 to 25 on
6 page 32 --
7 THE INTERPRETER: Interpreter's note: Mr. Dutertre just repeated
8 what he had said, the problem was that the interpreter was lagging behind
9 when he started taking the floor.
10 JUDGE ORIE: Yes. Well, Mr. Dutertre, you objected against the
11 question. Mr. Emmerson, hearing your objection, announced that he would
12 move on. Is there any specific reason why we -- where there's no
13 contested issue here, whether we would need to know or repeat what you
15 MR. DUTERTRE: [Interpretation] No, I'm not going to repeat. I
16 just wanted to say that I was not accurately reflected.
17 JUDGE ORIE: [Previous translation continues]... Transcript.
18 Please proceed.
19 MR. EMMERSON: Yes.
20 Q. I want to take these questions as quickly as I can for the next
21 section, please, Mr. Gojkovic. Paragraph 30, your statement reads, and
22 this describes your arrival on the 9th of September: "I observed bodies
23 covered with soil by the wall of the canal, and I could see flies around
24 the bodies. A bad smell was in the air. I crossed the canal and saw more
25 bodies and body parts."
1 When you say the -- you crossed the canal, can you just explain to
2 us from which side of the canal you began to cross and from which side --
3 to which side of the canal you made your crossing; in other words, which
4 direction you were going.
5 A. From the west to the east.
6 Q. Thank you. And when you say "I crossed the canal and saw more
7 bodies and body parts," where did you see the additional bodies and body
8 parts after you'd crossed the canal?
9 A. In the canal itself just -- just at the point where the concrete
10 part of the canal ends and there is a small waterfall there.
11 Q. So having crossed the canal, you didn't see any bodies on the
12 opposite side?
13 A. There were no bodies outside the canal.
14 Q. Thank you.
15 MR. EMMERSON: That's a slightly ambiguous answer.
16 Q. I think you mean there were no bodies on the opposite side of the
17 canal; is that correct?
18 A. We came to the plateau of the canal. There is a concrete part of
19 it. After that there is the waterfall. Further up from the plateau where
20 we had come from there is a pedestrian crossing, a sort of a bridge made
21 of planks. We crossed that bridge and went along one edge of the canal on
22 our left-hand side looking towards Lake Radonjic. Just blow or at the
23 foot of the waterfall there was an Opel passenger vehicle that was on its
24 roof and then --
25 Q. The answer's clear enough. Thank you very much. We've understood
1 your answer. Paragraph 36, you're dealing there with the 10th of
2 September, and in the second sentence you say: "We found bodies in the
3 concrete canal, in the canyon in front of and behind the Opel car and we
4 walked right to the mouth of Lake Radonjic."
5 Now, you describe bodies in the concrete canal and in the canyon.
6 Can you help us with this, please, does it follow from that that on the
7 10th when you were there you remember seeing bodies in the concrete
8 section of the canal itself?
9 A. That is the very fact I mentioned yesterday --
10 Q. Thank you --
11 A. -- that some of the formulations are wrong. In the concrete part
12 of the canal there were no bodies. Where were they found exactly? Well,
13 that is all reflected in the file.
14 Q. I see.
15 A. I can corroborate that by pointing out another technical error --
16 Q. Again, can I interrupt you a second. Do we then take it that
17 whenever you say in this statement I saw concrete bodies in the canal,
18 that is wrong --
19 JUDGE ORIE: Concrete bodies.
20 MR. EMMERSON: I'm sorry, I apologise.
21 Q. I saw bodies in the concrete canal, Mr. Gojkovic, you say that I
22 think --
23 A. The word "concrete" is wrong.
24 Q. Thank you.
25 MR. EMMERSON: I've got another topic to deal with. I wonder if I
1 could very briefly before asking for a break ask Judge Gojkovic to look at
2 a short passage of videotape, Mr. Gojkovic to look at a short passage of
4 JUDGE ORIE: Yes, we can do that. Yesterday I gave some
5 instructions on how to address him.
6 MR. EMMERSON: Yes, that was an error, a slip of the tongue.
7 [Videotape played]
8 MR. EMMERSON:
9 Q. That's you, Mr. Gojkovic, at the Bandera site, is it not?
10 A. That is fully correct.
11 Q. Yes. I'm just wondering whether seeing the gentleman in the
12 passage of video that immediately preceded that with the beard prompted
13 your recollection at all about a gentleman being in custody?
14 JUDGE ORIE: Could we just wind back a little bit so that --
15 MR. DUTERTRE: [Interpretation] Please rewind back.
16 [Videotape played]
17 MR. EMMERSON:
18 Q. Do you see that gentleman there? Pausing there. Do you see that
19 gentleman there? Is he somebody you saw at the time at all?
20 A. As I said, it is very likely that the man was there. There were
21 many people there. I cannot remember who, in what capacity.
22 Q. I see. Thank you.
23 MR. EMMERSON: Would that be a convenient moment?
24 JUDGE ORIE: Mr. Dutertre.
25 MR. DUTERTRE: [Interpretation] For the sake of clarity, Your
1 Honour, could we have the reference of this video and the exact length
2 when it starts and when it finishes.
3 MR. EMMERSON: Yes. The passage playing --
4 JUDGE ORIE: -- Clearly state --
5 MR. EMMERSON: The passage played I'm told is Exhibit P72, and it
6 begins at 45.07 on the counter and continues to 45.30.
7 JUDGE ORIE: Yes. And the time, whether correct or not --
8 MR. EMMERSON: Well --
9 JUDGE ORIE: -- of the last portion played, rewound is 3.08 a.m.,
10 11 of September, 1998, whether true or not is another matter.
11 MR. EMMERSON: Yes.
12 JUDGE ORIE: But that's what appears on the screen.
13 MR. EMMERSON: Thank you.
14 JUDGE ORIE: Mr. Emmerson, could you give us an indication?
15 MR. EMMERSON: Yes. 15 minutes.
16 JUDGE ORIE: Could I inquire with other counsel.
17 MR. GUY-SMITH: My examination will be shorter than I expected it
18 to be. Obviously some of the questions propounded. We are organizing
19 some things. It should be no longer than half an hour and it could be
20 shorter than that.
21 JUDGE ORIE: Mr. Harvey.
22 MR. HARVEY: I will have little if anything to ask after
23 Mr. Guy-Smith is finished, Your Honour.
24 JUDGE ORIE: Thank you.
25 We'll have a break and we'll resume at ten minutes past 4.00.
1 --- Recess taken at 3.45 p.m.
2 [The witness stands down]
3 --- On resuming at 4.20 p.m.
4 JUDGE ORIE: The Chamber would like to turn into private session.
5 [Private session].
11 Page 10117 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: Your Honours, we're back in open session.
5 JUDGE ORIE: Thank you, Mr. Registrar. The Chamber would like to
6 announce two decisions. The first decision is related to the recalling of
7 Witness 55. The Chamber has decided not to recall this witness. Written
8 reasons for our decision will be given in due course. The parties are
9 hereby asked to make submissions on the status of the evidence already
10 given by this witness in court by next Thursday, the 8th of November. The
11 Defence of all three accused is informed that the Chamber received
12 information in relation to this matter from VWS which was addressed to the
13 Chamber and also to the Prosecution. Since there's no specific reason for
14 just addressing the Prosecution, the Chamber will send this after having
15 consulted with VWS, a copy of this e-mail to the Defence.
16 The second decision concerns Witness 15. The Chamber has decided
17 to deny the subpoena for this witness. Written reasons for this decision
18 will also be given in due course, and this includes the Chamber's rulings
19 on these matters. Now I ...
20 [Trial Chamber confers]
21 JUDGE ORIE: Then finally I will deliver a decision on the
22 Prosecution's application for videolink testimony for Shefqet Kabashi.
23 On the 25th of October, 2007, the Prosecution asked the Chamber to
24 consider four options to secure Mr. Kabashi's evidence. The four options
25 included an application for compelled videolink testimony from
1 Mr. Kabashi's country of residence. On the 29th of October of this year,
2 the Chamber invited the parties to focus their submissions on the
3 application for videolink testimony, since it considered this to be the
4 next logical step. The Chamber explained its reasons for this on the 29th
5 of October.
6 On the 1st of November, 2007, counsel for Mr. Haradinaj and
7 Mr. Balaj requested the Chamber to reject the application for videolink
8 testimony. Both submitted that it is not in the interests of justice that
9 Mr. Kabashi testifies without being present in person before the Chamber
10 and the accused. It's their position that the Chamber should be in a
11 position to assess Mr. Kabashi's testimony without the impairments of
12 videolink testimony. Mr. Brahimaj's counsel, Defence counsel, did not
13 respond to the application.
14 MR. HARVEY: Your Honour, I have -- do apologise for interrupting,
15 but it may only have been filed lately, but we have, indeed, responded and
16 we have joined in the response of our colleagues.
17 JUDGE ORIE: The response by Mr. Brahimaj's Defence counsel was
18 not yet received by the Chamber. Mr. -- was it filed by 9.00 this
20 MR. HARVEY: It was not filed by 9.00 this morning, Your Honour.
21 So I do apologise for that.
22 JUDGE ORIE: Yes.
23 MR. HARVEY: And it adds nothing to what has already been filed.
24 I simply wish to clarify the record.
25 JUDGE ORIE: Yes.
1 MR. HARVEY: That we do join in their opposition.
2 JUDGE ORIE: Under those circumstances and the Chamber having
3 considered the -- the opposition by other Defence counsel, will now
4 continue -- will now continue with the decision, the reasons pronounced
5 until now not being amended in any way.
6 Under Rule 81 bis of the Tribunal's Rules, a Chamber may order
7 that proceedings be conducted by way of videolink if that is consistent
8 with the interests of justice.
9 The Chamber considers that Mr. Kabashi is an important eye-witness
10 to crimes charged in the indictment and that all measures capable of
11 securing his testimony before the Tribunal in The Hague in the near future
12 are exhausted.
13 Although the Chamber agrees with the Haradinaj, the Balaj, and the
14 Brahimaj Defence that it is preferable to hear a witness in court, the
15 Chamber considers that testimony by videolink does not necessarily
16 negatively impact the Chamber's ability to assess a witness's testimony.
17 Should the Chamber conclude, after hearing Mr. Kabashi's testimony, that
18 this is the case, this factor could affect the weight that the Chamber
19 will attach to the evidence. The Chamber finds that under the given
20 circumstances, videolink testimony is consistent with the interests of
21 justice, and therefore grants the application. The accused will be
22 allowed more than the usual amount of time in cross-examination of this
24 And this concludes the Chamber's decision on the Prosecution's
25 application for compelled videolink for Shefqet Kabashi.
1 Then, Mr. Usher, would you please escort the witness back in the
3 Mr. Emmerson.
4 MR. EMMERSON: Can I just indicate over the adjournment we have
5 identified another document from the file which was produced by this
6 witness which is relevant, and Mr. Guy-Smith has very kindly offered to
7 allow me with the Trial Chamber's permission to nibble into five minutes
8 of what would have been his cross-examination time to deal with one
9 additional document.
10 JUDGE ORIE: Yes.
11 Mr. Dutertre.
12 MR. DUTERTRE: [Interpretation] Unless I was mistaken, it was not
13 indicated as one of the documents to be used by the Defence in
14 cross-examination. I didn't have time to check because I've just received
16 JUDGE ORIE: Yes.
17 MR. EMMERSON: It's absolutely correct, it was not notified in
18 advance, it was not anticipated in advance of being used, it arises out of
19 one of the Judge's questions and answers in connection to material that is
20 to be found in the file.
21 JUDGE ORIE: Mr. Dutertre, the Bench being blamed for --
22 MR. EMMERSON: No, I'm sorry --
23 JUDGE ORIE: No, no, no --
24 MR. EMMERSON: The time -- did I say the Judge's questions --
25 JUDGE ORIE: Although I try to be a serious person, I now and
1 then -- I just wanted to explain to Mr. Dutertre that it was apparently
2 one of the Judge's questions that triggered the issue which unless you
3 would disagree, Mr. Dutertre, might show --
4 MR. DUTERTRE: [Interpretation] It is in your hands, Your Honours.
5 MR. EMMERSON: And I am clarifying it because when I said the
6 Judge's questions, I'm afraid I was again slipping -- suffering from a
7 slip of the tongue. It was the answer by the witness to one of my
8 questions which prompted this search of the documentation. It's not a
9 document the Prosecution are not aware of; it comes from their own
11 JUDGE ORIE: Let's see what it is. And as with the five -- the
12 six exhibits you tendered, Mr. Dutertre, the Chamber will of course first
13 have to look what the consequences are of using this exhibit, and then
14 decide whether it will admit it as it did with the five documents.
15 MR. EMMERSON: Yes.
16 JUDGE ORIE: Mr. Emmerson, once the witness has entered the
17 courtroom --
18 MR. EMMERSON: Thank you.
19 JUDGE ORIE: -- you may continue to cross-examine him.
20 MR. EMMERSON: In the meantime perhaps the Trial Chamber could
21 have hard copy documents, a copy for the witness as well possibly.
22 Mr. Registrar, does the witness have a copy?
23 [The witness takes the stand]
24 MR. EMMERSON:
25 Q. Mr. Gojkovic, I want to ask you --
1 JUDGE ORIE: Mr. Gojkovic, first of all, our apologies for a
2 delayed start. We had to deal with a few urgent procedural matters. I
3 hope you'll have understanding for this.
4 Please proceed, Mr. Emmerson.
5 MR. EMMERSON:
6 Q. Mr. Gojkovic, I want to take this as briefly as I can. You need
7 to look at the paper that has just been handed to you. You need to only
8 concern yourself with the paper that appears in front of the yellow
9 sticker, which is the original B/C/S version of this document.
10 JUDGE ORIE: Mr. Emmerson, as far as numbers are concerned --
11 MR. EMMERSON: The --
12 JUDGE ORIE: Has it already --
13 MR. EMMERSON: It hasn't. I think Mr. Registrar indicated that
14 the appropriate way of dealing with it is for it to be allocated the next
15 Defence MFI number.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: Your Honours, that will be marked for
18 identification as D191.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 MR. EMMERSON:
21 Q. Mr. Gojkovic, this is a document that you supplied to the
22 Prosecution from the Pec district court, and I want you to just help us
23 with it first of all so we understand what it is. If you look to the very
24 end of the document you can see that it is stamped and signed under the
25 name of Zoran Babic, deputy public prosecutor; is that correct?
1 A. Yes.
2 Q. And is it a request then from the deputy public prosecutor to the
3 district court investigating judge to open an investigation?
4 A. Yes.
5 Q. Thank you. And we can see - and this is something I'd like you to
6 just focus on for a moment - the request itself is dated the 9th of
7 September, correct?
8 A. Yes.
9 Q. And it's stamped by the district court as being received as well
10 on the 9th of September, correct?
11 A. Yes.
12 Q. And that stamp, does it look to you to be authentic?
13 A. I believe it is.
14 Q. Thank you. Now, if we can just look first of all at the request
15 as it appears, it's a request to open an investigation into the men whose
16 names we've been considering, and we can see -- can you confirm for us,
17 please, that as regards the first -- the first three named individuals,
18 Zenelj Alija, Bekim Kalamashi, and Smajl Smajli, this request notes that
19 they are at large, whereas in respect of the other individuals numbered 4
20 to 11, each of them is recorded as being in custody. Can you confirm
21 that, please?
22 A. I can confirm that this is indeed what it says here. Whether the
23 same information exists in the case file, I don't know, yes, but indeed it
24 does say here "remains at large and in custody."
25 Q. Yes. And if we can just look, please, at the end of the document
1 above the prosecutor's signature?
2 A. Yes.
3 Q. We can see that he makes a number of recommendations under the
4 headings "I recommend," and I'd like you to look, please, at the fourth
5 paragraph, that's the second of the two large paragraphs there. It
6 appears to be a recommendation that all of the reported men should be
7 remanded in custody under Article 191 of the code, and then it goes on in
8 the English translation: "Considering that Zenelj Alija and
9 Bekim Kalamashi remain at large and since there is a fear that if the
10 other reported men are released they would be beyond the reach of state
11 organs and a fear that they would continue to perpetrate the crime of
12 which they are suspected." Is that right?
13 A. Yes.
14 Q. So again just to pull this together, this is a document from the
15 public prosecutor which records that Zenelj Alija and Bekim Kalamashi are
16 not in custody; would you agree with that?
17 A. That's what it says.
18 Q. Thank you. Do you know at all whether Mr. Babic had any
19 involvement in the canal investigation?
20 A. Yes.
21 Q. He did? What was his involvement --
22 A. Yes.
23 Q. What was his involvement in the canal investigation, Mr. Gojkovic?
24 A. He was present on the 10th of September as the deputy district
25 public prosecutor. That's what the records indicate.
1 Q. Yes. Could you help us at all as to any reason that you might
2 know of why deputy public prosecutor would record those two men as being
3 not in custody if in fact they were in custody?
4 A. The information --
5 JUDGE ORIE: Mr. Dutertre.
6 MR. DUTERTRE: [Interpretation] Yes. The witness is asked to
7 speculate; therefore, objection.
8 MR. EMMERSON: Very well. If that is the objection, the way the
9 question is put is whether or not there is any explanation of which the
10 judge is aware of why in this case -- if I can put it in that rather more
11 concrete way --
12 JUDGE ORIE: If you first ask the witness if he is aware of any
13 reason, and then if he is aware of what the reason would be.
14 MR. EMMERSON:
15 Q. Mr. Gojkovic, are you aware of any particular reason why in this
16 case the public prosecutor who was at the canal would record in a document
17 dated and received by your court on the 9th that two men were not in
18 custody if in fact they were in custody of the police and had been
19 responsible for pointing out the canal to them?
20 A. Now, I cannot categorically state why the deputy public prosecutor
21 wrote this. I can guess that he wrote what he did on the basis of the
22 documents he had before him.
23 Q. Can I ask you this: As the deputy public prosecutor present at
24 the canal, would he have been allowed to talk to the police officers about
25 how they discovered it?
1 A. I don't think he did -- or actually, it's not that I think. I'm
2 sure he didn't talk to them about this. Besides, I believe you should
3 speak to him and ask him about it.
4 JUDGE ORIE: Mr. Gojkovic, the question was whether he would be
5 allowed to talk with the police officers about this, not whether he did.
6 THE WITNESS: [Interpretation] The organs of the MUP and the
7 prosecutor's offices cooperate one with another, they have close
8 cooperation about the detection, uncovery, and prosecution of perpetrators
9 of crimes. That's why I wanted to read out to you the legal provisions
10 governing the different duties these bodies have.
11 MR. EMMERSON:
12 Q. Yes, thank you. And finally on that last point, Mr. Gojkovic,
13 before the prosecutor decides to request the opening of an investigation,
14 would you expect him to familiarise himself with the content of any
15 interrogations that had been conducted by the police?
16 A. Before a filing or request for an investigation, the prosecutor
17 receives a criminal report from the police together with the supporting
18 documentation. These individuals were first suspects, now they were
19 indictees. If there is any material evidence about that, it is also
20 enclosed in that documentation. In addition to that, if any statements
21 were taken from individuals as eye-witnesses or merely citizens, these
22 statements would be attached to that documentation as well. Once the
23 prosecutor receives all the material, he makes the decision as to whether
24 to issue a request to open an investigation or to send the criminal report
25 back to the police for further supplementing of the material.
1 Q. So the answer to my question, Mr. Gojkovic, is yes, is that
2 correct, you would expect him to see the statements that had been made by
3 the accused whilst in police custody, just yes or no?
4 A. The prosecutor must examine all the enclosed evidence and make a
5 decision based upon that.
6 Q. Thank you. Can I look, please, now with you at paragraphs 92 and
7 93 of your statement where you deal with the investigation and prosecution
8 of two men called Krist and Lek Pervorfi. And again I'm going to take
9 this as quickly as I can with you, Mr. Gojkovic. Paragraph 92 you
10 indicate that you know about the investigation into those two men because
11 the Pec district court was asked by the Ministry of Foreign Affairs on the
12 request of The Hague Tribunal to submit a report on their interview. This
13 is paragraphs 92 and 93. My question is: Do you have any knowledge of
14 this case independent of the papers before we move on? Do you have any
15 recollection of this case?
16 A. I don't have any recollection of the case, no, absolutely not,
17 unless there are rulings in which I took part as member of the bench that
18 decided on the possible extensions of detention. And I mentioned that, I
19 believe, in paragraph 93.
20 Q. Pause there. I'm sorry. Your answer is a little difficult to
21 follow. Either you have a recollection of it or you don't. Do you now
22 have any recollection of this case, Mr. Gojkovic?
23 A. I don't know in what sense you mean of the case --
24 Q. Do you remember it --
25 A. -- the case as such exists in the records --
1 Q. Very well --
2 A. No.
3 JUDGE ORIE: Mr. Emmerson.
4 MR. EMMERSON: Yes.
5 JUDGE ORIE: You said "you have a recollection or not," it appears
6 that the witness at this moment has no recollection, but he does not
7 exclude for the possibility that if he would see documents that matters
8 might come back in his mind.
9 MR. EMMERSON: Yes.
10 JUDGE ORIE: That's how we understand it.
11 MR. EMMERSON: That's my understanding as well.
12 Q. But we see at paragraph 93 that you indicate that you were
13 present -- president of the court and presided over a panel of three
14 judges who extended their detention by two months, following the original
15 one-month investigative detention, correct?
16 A. Let me explain this. I stated that and I confirm it now. The
17 register states the number of the case, the persons to whom the case was
18 assigned. As of November 1998, I was the president of the court. If the
19 detention was extended by two months, then I definitely was one of the
20 judges on the bench.
21 Q. [Previous translation continues]...
22 A. And I was telling you that if there was such an extension, then a
23 document to that effect must exist.
24 Q. I see. Just pause with me for a moment. We don't see on the
25 annexes to your statement the decision of extension, but do I understand
1 you to be saying if their detention was extended you must have been the
2 person responsible because at that stage you were president. Is that how
3 we understand the testimony?
4 A. That's right, because according to the rules of procedure the
5 president of the court is ex officio president of the KV panel --
6 Q. Thank you, thank you --
7 A. -- which is the panel deciding about the extension of detention.
8 Q. Thank you. You then go on to say after that the Supreme Court of
9 Serbia extended their detention for three more months. Again, is that
10 based on recollection or on consulting the records?
11 A. I didn't see the papers. I wasn't able to. I explained to you
12 what the procedure was. I have a letter here which states what they were
13 asking from me and how I responded to that. If you want me to, I can read
14 it out.
15 Q. Mr. Gojkovic, I'm not asking you to read out a letter from the
16 Office of the Prosecutor, but your statement records the fact that it
17 is --
18 A. Not the prosecutor, you misunderstand me. That's the letter from
19 the Ministry of Justice and Ministry of Foreign Affairs where they asked
20 me to send as a matter of urgency certified statements from the
21 investigation of Pervorfi Krist, and the other one, I don't know what his
22 name is. It says there that I heard them, but I replied to this request
23 of theirs on the basis of the court register which has the documentation.
24 Q. I'm only asking you a very simple question. Where you say here in
25 your statement: "After that the Supreme Court of Serbia extended their
1 detention for three more months ..." From where do you get that
2 information about the decision that was made in this case?
3 A. In the last sentence of paragraph 93, this can be checked in the
4 records. This information is given on the basis of the court register.
5 Q. And so my question is simple: Did you check the register before
6 writing the statement? Is that how you got the information?
7 A. How would I have been able to respond to that letter if not by
8 consulting the register? I consulted the register.
9 Q. Thank you. That was all I was seeking to establish with you.
10 Now, I want to ask you, please, if you would, to look at a document which
11 has not yet been introduced into evidence, and I'm just going to give you
12 the reference number for it. It is Defence document 1D69001, and it is a
13 municipal court judgement concerning the case of Lek Pervorfi?
14 JUDGE ORIE: And it will need a number I take it?
15 MR. EMMERSON: It will, yes.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: Your Honours, that will be marked for
18 identification as D192.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 MR. EMMERSON: Yes.
21 Q. If you could -- first of all, Mr. Gojkovic, you can confirm,
22 please, can you, that the document that you're looking at on the
23 right-hand side of the screen is a decision of the municipal court in
24 Sremska Mitrovica concerning the case of the accused Lek Pervorfi from
1 A. I can't confirm that because this case did not come from the Pec
2 district court or from the courts within the jurisdiction of that district
4 Q. I see. Well, could you just help us to interpret it, please,
5 because it is a document that the Prosecution have provided from
6 communication with Belgrade. I just want you to look at the
7 word "judgement," please, and confirm that this is a judgement dated the
8 13th of August, 1999, recording a conviction against Lek Pervorfi for the
9 offence of possessing a fire-arm, that is a pistol, and ammunition. Do
10 you see that?
11 A. Well, this is the criminal offence of -- for the possession of
12 unlicensed weapons --
13 Q. Thank you --
14 A. -- and it was obviously committed within the jurisdiction of the
15 Sremska Mitrovica district court, whereas in that other case within the
16 Pec district court they were responsible for a different crime. In
17 paragraph 92 of my statement you can find this --
18 Q. Mr. Gojkovic, please don't run ahead of yourself because the
19 evidence that you're giving at the moment is inconsistent with the text of
20 the judgement itself which makes it clear --
21 JUDGE ORIE: Mr. Emmerson, I understood the witness to say where
22 in his statement he referred to a case against Krist and Lek Pervorfi,
23 that this judgement might be in a different case. That is how I
24 understood him, so therefore how on the basis of the crime described that
25 is inconsistent is not clear to me yet.
1 MR. EMMERSON: Yes, I'm sorry, I thought that the witness's answer
2 was that this was in a different geographical jurisdiction.
3 JUDGE ORIE: I think as --
4 MR. EMMERSON: And that --
5 JUDGE ORIE: That's then perhaps --
6 MR. EMMERSON: Because if you look at the judgement itself under
7 the words "is guilty" --
8 JUDGE ORIE: He then referred: "Whereas in that other case within
9 the Pec district court they were responsible for a different crime" --
10 MR. EMMERSON: Yes.
11 JUDGE ORIE: Therefore I have difficulties in understanding how
12 this judgement --
13 MR. EMMERSON: If I can develop it.
14 JUDGE ORIE: Yes.
15 MR. EMMERSON: What the witness has indicated at page 54, line 24,
16 is that this offence was an unlicensed weapons offence obviously committed
17 within the jurisdiction of the Sremska Mitrovica court. And in fact, if
18 one looks at the judgement itself, it makes it clear --
19 JUDGE ORIE: Please develop your -- let's not try to -- we've had
20 some difficulties.
21 MR. EMMERSON:
22 Q. Would you look at the judgement itself where it makes it clear
23 that Lek Pervorfi is found guilty because from an undetermined day in 1996
24 until the 28th of October, 1998, in his house in Dujak village, Djakovica,
25 he held, without authorisation, a Walther 7.65-millimetre pistol with a
1 serial number and ammunition. Do you see that?
2 A. On an undetermined day.
3 Q. On an undetermined day, Mr. Gojkovic, up to, if you look at it on
4 the 28th of October, 1998 --
5 A. Yes, yes, that's what the judgement says.
6 Q. That was the day that Mr. Pervorfi was arrested in the proceedings
7 that brought him before your court for the extension of his detention I
8 suggest. Could I ask you just for the sake of clarification -- as I say,
9 it's better to read it before we're running ahead. If you could please
10 look at the third paragraph from the end of the judgement which is the
11 sentencing section which explains how the court has reached its decision
12 on sentencing. So for that purpose we need to go to the -- in the B/C/S
13 version it's page 3 and in the English version it is page 4.
14 JUDGE HOEPFEL: But for sake of clarity, the court you said?
15 Which court are you speaking of, Mr. Emmerson?
16 MR. EMMERSON: This court, the court that has delivered this
18 JUDGE HOEPFEL: Okay.
19 MR. EMMERSON: Explains its sentencing decision by reference to
20 the periods of time spent in custody.
21 JUDGE HOEPFEL: Yes.
22 MR. EMMERSON: As authorised we would submit by Judge Gojkovic,
23 Mr. Gojkovic.
24 Q. If we could just take it reasonably swiftly. Could you read,
25 please, to yourself, Mr. Gojkovic, the paragraph that appears in the
1 centre of the page there, so as you look at the screen, that's --
2 MR. EMMERSON: Yes, perhaps we could expand that paragraph.
3 Q. If you could just read that paragraph to yourself --
4 MR. EMMERSON: Perhaps just make it a bit -- that's as big as it
6 Q. -- and read -- digest what it is indicating for us, please. Have
7 you had a chance to look at that?
8 A. [No interpretation]
9 THE INTERPRETER: The interpreters did not understand the witness.
10 MR. EMMERSON:
11 Q. Have you had a chance to look at it?
12 A. My response --
13 Q. I haven't asked you a question yet. I haven't yet asked you a
14 question. Please bear with me for a moment. Have you read the paragraph,
15 Mr. Gojkovic?
16 A. I've read it all --
17 Q. Thank you --
18 A. -- and I can repeat.
19 Q. Just wait for the question, if you will, please. Taking it very
20 shortly, I just want a summary of what that is indicating to us. It is
21 indicating, is it not, that this court is refusing to take into account in
22 sentencing Mr. Pervorfi for the fire-arms offence the period of time that
23 he spent in custody of the Pec district court following his original
24 arrest for the crime of terrorism under Article 125?
25 JUDGE ORIE: Mr. Dutertre.
1 MR. DUTERTRE: [Interpretation] Mr. President, I wonder what is the
2 relevance of all these questions in relation to our case. I may be ahead
3 of myself, but I don't know where Mr. Emmerson wants to go.
4 MR. EMMERSON: [Previous translation continues]...
5 MR. DUTERTRE: [Interpretation] Where he's heading for, but he
6 seems to take some distance from our case.
7 MR. EMMERSON: It goes to the withdrawal of the terrorism charges
8 against Lek Pervorfi and Krist Pervorfi.
9 JUDGE ORIE: Let's further hear the evidence. Proceed.
10 MR. EMMERSON:
11 Q. Judge Gojkovic -- I'm sorry, Mr. Gojkovic, let's put a different
12 question to you and see if it's easier to approach in this way. Do you
13 see halfway down this paragraph a sentence that indicates that the
14 investigation against Lek Pervorfi for the crime of terrorism was
15 suspended by decision KI67/99 of the 29th of July, 1999, do you see that?
16 A. I've read it all.
17 Q. Thank you.
18 A. Can I follow it up with three sentences to clear it all up?
19 Q. Please, please.
20 JUDGE ORIE: Yes.
21 THE WITNESS: [Interpretation] The case was with the district court
22 of Pec. By decisions of the competent authorities of the Ministry of
23 Justice and the Supreme Court of Serbia, it was decided that the district
24 court of Sremska Mitrovica should hear the case. What were the reasons, I
25 don't know. I suppose that they had been detained there after we had
1 moved out of Kosovo. What was going on there during the proceedings I
2 cannot say. I suppose that the prosecutor changed the qualification of
3 crimes committed, and I'm stating that based on the description of the
4 crime. As to the rest of the proceedings, well for that one would have to
5 review the entire case file of the district court of Sremska Mitrovica.
6 MR. EMMERSON:
7 Q. We don't necessarily need to go quite that far, Mr. Gojkovic. The
8 decision of suspension on the 29th of July, 1999, was a decision to
9 terminate charges of terrorism, was it not? That's what it indicates?
10 A. If that's what it reads, then there must be a decision in
12 Q. Exactly so?
13 A. No discussion there.
14 Q. Exactly so. So could we please look then at that decision which
15 is Defence 1D690059.
16 MR. EMMERSON: And the translation on this document is unofficial.
17 JUDGE ORIE: And still needs a number.
18 MR. EMMERSON: And still needs a number, yes.
19 JUDGE ORIE: Mr. Registrar, that would be number?
20 THE REGISTRAR: D193, Your Honours.
21 JUDGE ORIE: Thank you.
22 Please proceed.
23 MR. EMMERSON:
24 Q. Now, would you consider that document, please, Mr. Gojkovic,
25 because it's the same reference number as we see in the judgement,
1 KI67/99, and it's dated, as you see, the 29th of July.
2 A. Yes.
3 Q. And that is a decision which describes -- is described as a
4 decision to suspend the investigation against Krist and Lek Pervorfi, and
5 it's a decision made under Article 170 of the Yugoslav code on criminal
6 procedure, correct?
7 A. Yes.
8 Q. And Article 170 provides that the examining magistrate is required
9 to dismiss an inquiry if the prosecutor decides not to pursue a
10 prosecution; is that correct?
11 A. Yes, certainly, that's what the law prescribes.
12 Q. Thank you. And so the decision that we're looking at here is a
13 decision to abandon against Lek and Krist Pervorfi charges of terrorism,
14 is it not?
15 A. Yes, the decision was to terminate the proceedings since the
16 public prosecutor decided not to pursue the case any further --
17 Q. Yes --
18 A. -- the one from Sremska Mitrovica --
19 Q. No, I'm sorry, this is not the one from Sremska Mitrovica, is it,
20 this is the decision of your case that is suspended. If you look at the
21 decision, it's the investigating judge from the direct court in
22 Sremska Mitrovica, but the decision suspends, that is, terminates, the
23 investigation which was initiated following the decision of the Pec
24 district court, correct?
25 A. The investigation is terminated by a decision of the district
1 court of Sremska Mitrovica as part of the case heard by the Pec court that
2 was forwarded to the Sremska Mitrovica case because the prosecutor decided
3 not to press the matters any further.
4 Q. Thank you. So let's just draw the threads together. These men
5 were held in custody of the Pec district court on charges of terrorism,
6 and you've told us that you extended their detention for a period of time.
7 Then in July of 1999 the prosecution against them for terrorism
8 was terminated, and then as we can see in the judgement that we just
9 looked at, Lek Pervorfi was prosecuted for possession of a fire-arm up to
10 and including the time of his arrest on the 29th of October, 1998, but the
11 court was not willing to take into account in the sentence for that
12 offence the period of time he'd spent in custody to the Pec district court
13 on the terrorism charges that the prosecution had abandoned; correct?
14 That's a summary of the position, is it not? Do you want me to go
15 through it again? Would it -- did my question not come through clearly?
16 Mr. Gojkovic, what I'm doing, inviting you to confirm, is a summary of
17 what these two documents indicate to us. And what they indicate is that a
18 prosecution or investigation, rather, of these two men for the crime of
19 terrorism under section -- Article 125 of the Criminal Code was abandoned
20 on the 29th of July, after they had been held in the custody of the Pec
21 district court under the detention authorisations that you've told us
22 about, and then prosecution was pursued against Lek Pervorfi for
23 possession of a fire-arm which was seized from him at the time of his
24 arrest on the 28th of October, 1998, but the sentencing court was not
25 prepared to count the time spent in custody on the terrorism charges,
1 which were abandoned, as part of the sentence for the possession of a
3 A. I've already answered these questions of yours, but I'll answer it
4 again. This document pertaining to the suspension of any further
5 investigation is a document of the district court of Sremska Mitrovica, as
6 part of the case of the Pec district, that was forwarded to the Sremska
7 Mitrovica court, and this came about because the prosecutor abandoned the
8 charges. As to how it came about that they were finally being prosecuted
9 for illegal possession of weapons, I don't know, but here we have an
10 official document before us and this is the extent of the things I can
11 confirm to you.
12 Q. Yes, thank you.
13 MR. EMMERSON: Those are my questions.
14 JUDGE ORIE: Thank you.
15 Mr. Guy-Smith.
16 By the way, if you would allow, we're now in the middle of these
17 documents so I would like to ask one additional question.
18 MR. GUY-SMITH: Sure.
19 JUDGE ORIE: Mr. Emmerson has put to you what these documents tell
20 us, dropping terrorist charges, convicted for possession of fire-arms,
21 pre-trial detention in the terrorist case not deduced in the fire-arms
22 case. Now, may I ask you, would you consider it a possibility that the
23 fire-arms charges were more or less deduced from or were a reduction from
24 terrorist charges? Did that happen? Did you charge someone with
25 terrorism and that you might find yourself in evidentiary problems and
1 that you would down-size the case and make it an illegal possession of
2 arms case? Is that something that happened in your jurisdiction?
3 THE WITNESS: [Interpretation] I categorically state that this case
4 here is a unique one. It -- a thing like that never happened with the
5 district court of Pec, whether an accused is guilty or not needs to be
6 determined, but I can only suppose that the court in agreement with the
7 prosecutor decided to opt for a different qualification of crimes
8 committed, upon prosecution's request. I am stating this based on the
9 fact that the crime was committed in October 1998 in a village in the
10 environs of Djakovica.
11 JUDGE ORIE: Let me ask you, this judgement is about the
12 possession of fire-arms from 1996 to the end of October 1998, isn't it,
13 not just 1998? Or did I misinterpret the judgement? It could be put on
14 your screen again if you would like to see it again.
15 Mr. Registrar, I think it was D192 if I'm ...
16 MR. EMMERSON: Your Honour, whilst it's brought up, it may be
17 self-evident, but from the passage in the judgement concerning sentence it
18 is plain that Mr. Pervorfi had been in custody continuously between his
19 arrest on the 29th of October and the judgement of the sentencing court --
20 JUDGE ORIE: Yes, I'm --
21 MR. EMMERSON: No, I said --
22 JUDGE ORIE: I'm contesting that --
23 MR. EMMERSON: No, but I --
24 JUDGE ORIE: But I thought the witness said it was a judgement on
25 the crime committed in October 1998, whereas he is found guilty because
1 from an undetermined day in 1996 until - so that covers a far larger
2 period than just October 1998, that's at least how I understand this
3 judgement, and therefore I just sought clarification of the testimony
4 where you said it was a crime committed in 1998. Perhaps -- may I ask the
5 question in the following way: Let's just assume that on the basis of
6 possession of fire-arms in circumstances which would allow for the
7 suspicion that there was activity undermining the state authority, which I
8 understand was called terrorism at the time, if finally later on in the
9 proceedings it would be difficult to prove that this was -- this intent
10 was -- could be associated with the possession, the illegal possession of
11 arms, what would you do under those circumstances? Would you drop the
12 terrorist charges and charge for illegal possession of arms or would you
13 change the qualification of the facts charged and not drop the charges,
14 but just change the qualification? Do you understand what I'm trying to
15 find out, how I have to interpret this judgement?
16 THE WITNESS: [Interpretation] This judgement should be viewed as
17 an easier path that was before the court. Currently I don't have before
18 me the law regulating the issue of statute of limitations. If the offence
19 began being committed in 1996, I wonder whether there is any statute of
20 limitation applicable and whether these people can be prosecuted at all.
21 JUDGE ORIE: Yes. That's an interesting observation. Therefore,
22 I take it that terrorist activity would under the statute of limitation,
23 would -- you would be allowed to prosecute that for a longer period of
24 time. But at least this Court apparently has considered that there was or
25 at least assumed that there was no statute of limitation applicable. Now,
1 is -- my question is: Is it under your law applicable at that time, was
2 it possible just to drop charges and, as you said, take an easier path,
3 perhaps something that would be easier to prove? Because if fire-arms are
4 seized during a search, it might be easier to prove illegal possession of
5 fire-arms than it would be to prove terrorist activities.
6 THE WITNESS: [Interpretation] In the cases I worked on this did
7 not occur. Either there was an offence or there wasn't.
8 [Trial Chamber confers]
9 JUDGE ORIE: Let's move on.
10 Any questions, Mr. Guy-Smith?
11 MR. GUY-SMITH: Sorry, my headphones are broken so it takes a
12 minute to -- that's fine.
13 Cross-examination by Mr. Guy-Smith:
14 Q. I'd like to start, Mr. Gojkovic, just with really a housekeeping
15 matter to tidy something up.
16 MR. GUY-SMITH: If we could have D66 which is a video played for a
18 Q. I'd like you to take a look at this video, sir. In this video
19 there is a gentleman in it wearing a suit.
20 [Videotape played]
21 MR. GUY-SMITH:
22 Q. And like, if you could for purposes of the record, identify that
23 individual I believe as you well know.
24 MR. GUY-SMITH: You could stop right there.
25 Q. Could you identify that individual, please, sir.
1 A. That is me, Gojkovic, Radomir.
2 Q. Thank you.
3 JUDGE ORIE: For the record, Mr. Guy-Smith, could you tell us what
4 was shown to the witness.
5 MR. GUY-SMITH: That was a video that was previously shown with
6 regard to a visit at Gllogjan on September 16th in which Mr. Kaufmann and
7 Mr. Achilleas Pappas were present.
8 JUDGE ORIE: For the record, if it ever comes to the Appeals
9 Chamber, where do we find it?
10 MR. GUY-SMITH: It's D66.
11 JUDGE ORIE: It's D66, I might have missed that, and at least what
12 we see on the screen that it bears -- the image bears the date of 16th of
13 ninth, 1998 --
14 MR. GUY-SMITH: And I believe it's about the counter of 1.18.
15 JUDGE ORIE: Yes, and the time indicated on the screen is 14.50.
16 Please proceed.
17 MR. GUY-SMITH: Thank you.
18 Q. If we could go back for a moment just to make sure that there's
19 some understandings about something.
20 MR. GUY-SMITH: And I would like if we could have P1200 up on the
21 screen, and I believe it will be page 17 in the English translation and
22 page 16 in the B/C/S. And directing your attention when it comes up to --
23 no. It's going to be page -- it starts on -- actually on page 15 in B/C/S
24 and then it goes over to page 16.
25 Q. And I'd like you to take a look at the bottom of page 15, the very
1 last line, and then moving over to page 16 in B/C/S. That is the part of
2 the judgement that relates to the finding of nitrate traces on the hands
3 of a number of the accused, correct?
4 A. That is what the judge in question wrote down; that is what he
5 based his decision on.
6 Q. Thank you.
7 MR. GUY-SMITH: And if we could now have up on the screen P1201,
8 and I apologise because I'm not sure precisely what page it's going to
9 come up. It's, as I have it, pages, I believe -- I believe it's going to
10 be pages 13 and 14, which is findings of the expert. And really all I'm
11 looking for is the very last page which has a signature on it, a gentleman
12 whose name is Slavisa Jankovic. Okay. And for the B/C/S ...
13 Q. Do you recognise that signature as being the chemist
14 Slavisa Jankovic, who was the individual who did a fair amount of testing
15 with regard to nitrate traces during 1998 and specifically for the Pec
16 court? He also did work I believe in 1999.
17 A. It states that this person signed the document, that he did it as
18 a forensic expert. Those are probably the facts of the case, however I
19 cannot tell you anything about it since I didn't work on the case --
20 Q. I appreciate that. My question is: Do you recognise the
21 signature? Is this a gentleman that you worked with, Slavisa Jankovic.
22 Is he one of the experts working at your courthouse during this time?
23 A. Since she was designated as forensic expert, she must have been on
24 the list. The court could not have engaged her in any other way.
25 Q. Thank you --
1 JUDGE ORIE: Mr. Gojkovic, the question was whether you recognised
2 the signature, but Mr. Guy-Smith may have confused you by adding a lot of
3 things. But do you recognise -- have you seen that signature before, do
4 you recognise it as the signature of that expert?
5 THE WITNESS: [Interpretation] I cannot tell you that. I don't
6 remember ...
7 JUDGE ORIE: Thank you.
8 MR. GUY-SMITH:
9 Q. Very well. Do you remember Slavisa Jankovic offering expert
10 testimony in the Pec courts during 1998 and 1999?
11 A. I don't remember. She wasn't in any of my cases.
12 Q. Was there a case tried in the Pec district court concerning the
13 Djakovica Group in 1999?
14 A. There were several cases. I don't know which one you're referring
15 to specifically.
16 Q. Well, this is a case in which there was proof that 143 accused
17 individuals, according to the judgement, had participated in the event
18 because of positive results from paraffin testing. Do you recall that?
19 A. I don't.
20 Q. Well --
21 A. I know as a president of the court that the case existed. Others
22 were seized of it, and what exactly was going on in that case I don't
24 Q. Okay.
25 MR. GUY-SMITH: If we could have up on the screen -- and this is
1 going to need an MFI number, 2D001534.
2 JUDGE ORIE: Mr. Registrar, that would be ...?
3 THE REGISTRAR: Your Honours, this will be D194.
4 JUDGE ORIE: Marked for identification. Thank you.
5 Please proceed.
6 MR. GUY-SMITH: And I'm referring to what would be page 38 in the
8 Q. And I'm going to read something to you and see whether or not
9 you're aware of this comment being made, and this is under the section
10 called "hearing of evidence" --
11 JUDGE HOEPFEL: Which page, please, in the English translation?
12 MR. GUY-SMITH: Page 30 -- that would be page 38 in the English
14 JUDGE HOEPFEL: Also page 38?
15 MR. GUY-SMITH: I have it as page 38 in the English translation
16 here. It's -- there we go. Perfect. Thank you.
17 Q. And I just want to draw your attention to one part which will be
18 the second full paragraph for the moment:
19 "The chemist Slavisa Jankovic, employee of the Pristina MUP who
20 has conducted analysis in most Albanian cases during the trial of the
21 so-called 'Djakovica Group' said: 'It is not possible to determine what
22 was the origin of the nitrate while regarding the nitrates with determined
23 origin: Whether from powder particles or urine or spray or cosmetic
24 products or some other material ... There aren't any possibilities to
25 make a distinction of the solution in regard to some characteristics,
1 shade, link. They are the same.'"
2 Now, my question to you, sir, is: During these hearings and you
3 as the president of the Pec tribunal, did you have a policy where your
4 judges engaged in questioning or further understanding as to how such
5 physical evidence was obtained and the reliability of it?
6 A. Judges proceed in the case, whether in the role of investigating
7 judges or presidents of benches. When at any stage of the proceedings
8 they order that an expert witness file a report, they have to order that
9 particular expert witness what precisely he or she is supposed to report
10 on. These specific instructions are sent to the expert witness who on the
11 basis of it all, of the evidence that is also sent to him, provides his
12 expertise. If his findings are incomplete or unclear, the expert witness
13 may be called to appear in order to clarify all the important facts or, in
14 the alternative --
15 Q. If I might, sir, with regard to the expert opinion of
16 Slavisa Jankovic in the document we looked at just a moment ago, P1201,
17 the opinion is there are traces of nitrates and nitrites which can come
18 from gunpowder. That was the opinion rendered, correct?
19 A. It is possible that this was her opinion. What happened later
20 on --
21 Q. Excuse me, sir. That was the opinion rendered by the expert,
23 A. I'm saying that it is possible that this is her opinion. What
24 happened later, whether this opinion was confirmed, varied, or whether
25 another expert report was sought, this is something you will be able to
1 find in the case file.
2 Q. Well --
3 A. I --
4 Q. Excuse me, sir. If that was the case, then what we would find
5 with regard to the judgement rendered is some reference, as we find in the
6 judgement that we have, to another expert report, wouldn't we? There
7 would be some indication that there had been another expert report,
8 correct, and we don't have that here, do we? And by that I'm referring to
9 the judgement. We may need to move back to P1200. Unless you want to
10 take my word for it that the only mention of an expert report with regard
11 to the issue of any kind of nitrate traces is expert witness number
13 JUDGE ORIE: Mr. Guy-Smith, could you please come to your point.
14 MR. GUY-SMITH: Sure.
15 Q. Did -- do you, to your knowledge, know whether in this particular
16 judgement there was information given to the judge as to when the test was
17 taken, as to who took the test --
18 JUDGE ORIE: Mr. Dutertre.
19 MR. DUTERTRE: [Interpretation] I object to this question because
20 the witness is asked to speculate.
21 JUDGE ORIE: No, he is not asked to speculate. He's asked whether
22 he knows whether information was given to the judge.
23 Do you remember or do you not remember, Mr. Gojkovic?
24 THE WITNESS: [Interpretation] This is my answer. A judgement is
25 rendered not on the basis of a single piece of evidence but on the basis
1 of all the available evidence. Furthermore, I cannot comment on this
2 particular expert report in that case because I was not seized of the
3 case. I knew of the case, but I would have to be able to look at the
4 entire case file to answer that question.
5 JUDGE ORIE: First of all, it is -- it goes without saying that
6 when rendering a judgement that you should consider all the evidence, so
7 that's understood by -- especially by all lawyers in this courtroom.
8 You're not asked to comment on it. The simple was: Do you know whether
9 any specific -- let me -- whether in this particular case - I take it,
10 Mr. Guy-Smith --
11 MR. GUY-SMITH: Thank you, Judge.
12 JUDGE ORIE: -- that there was information given to the judge as
13 to when the test was taken, who took the test, do you know that, if such
14 information was given to the judge, yes or no; if you don't know, tell
15 us. If you do know, tell us as well.
16 THE WITNESS: [Interpretation] I don't know.
17 JUDGE ORIE: Please proceed, Mr. Guy-Smith.
18 MR. GUY-SMITH: Thank you.
4 [Private session]
11 Pages 10152-10153 redacted. Private session.
16 [Open session]
17 MR. GUY-SMITH:
18 Q. Your Honours I'd like if --
19 THE REGISTRAR: Sorry for the interruption. We're in open
21 MR. GUY-SMITH: I'm sorry, I'm trying to get done with the time.
22 JUDGE ORIE: Last question, Mr. Guy-Smith.
23 Please proceed.
24 MR. GUY-SMITH:
25 Q. I'd like if you could explain to the Chamber what you meant when
1 you said in your statement in 2006: "The Albanians settle their quarrels
2 by death. It is their rule of nature."
3 Could you explain to the Chamber, please, what do you mean by the
4 Albanians' rule of nature?
5 A. When I said this, I meant that there were certain blood-feuds at
6 the time of the tragic events that happened in 1998 and 1999.
7 Q. Thank you.
8 JUDGE ORIE: Yes.
9 Mr. Harvey -- of course I'm looking at the clock and it would be
10 time for a break. At the same time, I do not know what the result will be
11 for any protective measures for the next witness. And since -- if they
12 would be granted they would have to be prepared over a break. So
13 therefore, although it by and large would be the time to have a break, I
14 don't know how much time you need.
15 MR. HARVEY: I don't want to heighten the tension or the
16 expectation any longer. I have no questions of this witness.
17 JUDGE ORIE: Yes.
18 Mr. Dutertre, any further questions to the witness?
19 MR. DUTERTRE: [Interpretation] One very brief question, Your
21 [Trial Chamber confers]
22 Re-examination by Mr. Dutertre:
23 Q. [Interpretation] Mr. Gojkovic, in July -- in July 1999, when the
24 charges for terrorism were dropped, the charges against the -- against the
25 Pervorfi, Serbian authorities were no longer in Kosovo, right?
1 A. No.
2 Q. And you no longer could access the witnesses and you were no
3 longer able to collect evidence on the scene?
4 A. No.
5 Q. Thank you.
6 MR. DUTERTRE: [Interpretation] These are the two questions I had.
7 JUDGE ORIE: Thank you, Mr. Dutertre.
8 Mr. Gojkovic, since the Chamber has no further questions for you,
9 this concludes your testimony. At the same time, you're looking at me as
10 if you would like to say something. Is that -- if not, I'd like to thank
11 you -- is there any matter because Mr. Emmerson in the beginning said if
12 you want to draw our attention to certain articles of criminal
13 procedure -- although we are more interested in what actually happened
14 rather than the exact framework of the law because we will not decide
15 whether and who stayed within the -- within the boundaries of the law.
16 But if you would like to add something, please do so.
17 THE WITNESS: [Interpretation] I only wish to make a few points.
18 First, I'd like the Pervorfi case to be obtained in order for one to see
19 what it contains.
20 JUDGE ORIE: Mr. Gojkovic, if the parties would like to have that
21 available, then they'll certainly ask for that and then the Chamber will
22 consider whether or not to support that. Please proceed.
23 THE WITNESS: [Interpretation] Second, one or two, keep in kind the
24 decree on the application of the Law on Criminal Procedure in times of
25 war, during a state of war. I can leave a copy for your benefit if you
2 JUDGE ORIE: If you leave a copy so that the parties can consult
3 it -- and of course the law is, as such, accessible by a court even if not
4 provided by the parties. We'll certainly consider your suggestion. If
5 you leave a copy, that would certainly assist the parties in their
6 decision whether or not to seek further attention of the Chamber to this
7 piece of legislation.
8 Any other point, Mr. Gojkovic?
9 THE WITNESS: [Interpretation] Nothing else.
10 JUDGE ORIE: Then I would like to thank you very much for coming
11 to The Hague and to answer all questions put to you by the parties and by
12 the Court, and I wish you a safe trip home again, Mr. Gojkovic. The --
13 THE WITNESS: [Interpretation] Thank you and thank you for your
15 JUDGE ORIE: Then in view of an application for protective
16 measures, not in any way anticipating on the decision to be made by the
17 Chamber, the Chamber would very much like to have everything prepared for
18 such protective measures in case the Chamber might grant the application.
19 We'll have a break and we'll resume at quarter past 6.00.
20 --- Recess taken at 5.55 p.m.
21 [The witness withdrew]
22 --- On resuming at 6.23 p.m.
23 JUDGE ORIE: An application was filed for the next witness to have
24 protective measures granted. I'd first like to go into private session
25 to ...
1 [Private session]
11 Pages 10159-10160 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we're back in open session.
9 JUDGE ORIE: Thank you.
10 May I remind the parties and myself to switch off our microphones
11 whenever the witness answers questions.
12 MR. RE: While the witness is coming in there are three exhibits I
13 think I'll be using with her. She will have a copy in hard copy before
14 her especially the Human Rights Watch report. There weren't -- there was
15 no need to copy large volumes.
16 JUDGE ORIE: Thank you, Mr. Re.
17 [The witness entered court]
18 JUDGE ORIE: Good afternoon, (redacted)
19 THE WITNESS: [Interpretation] Good afternoon.
20 JUDGE ORIE: Ms. -- We are in open session at this moment. A
21 redaction will be made. Witness 28, because that's how we will call you,
22 Witness 28, the Chamber has decided to grant the application for
23 protective measures, that is, that you'll testify under pseudonym, we'll
24 call you Witness 28; that your image will be distorted so that outside of
25 this courtroom people will not recognise your face; and that your voice
1 will be distorted as well so that they would not recognise your voice.
2 But your testimony as such is public. If there would ever come any point
3 where by answering questions you would fear that you would reveal your
4 identity, then you can ask for private session.
5 Before you give evidence in this court, the Rules of Procedure and
6 Evidence require you to make a solemn declaration that you'll speak the
7 truth, the whole truth, and nothing but the truth. The text is handed out
8 to you by the usher. May I invite you to make that solemn declaration.
9 THE WITNESS: I solemnly declare that I will speak the truth, the
10 whole truth, and nothing but the truth.
11 JUDGE ORIE: Thank you, Witness 28. Please be seated. The
12 curtains will be drawn up, again that you're shielded by.
13 Witness 28, you'll first be examined by Mr. Re, who is counsel for
14 the Prosecution.
15 Mr. Re, you may proceed.
16 WITNESS: WITNESS SST7/28
17 Examination by Mr. Re:
18 Q. I have a witness pseudonym sheet which is MFI 65 ter 2138. As we
19 are in private session, is it --
20 JUDGE ORIE: We are not in private session.
21 MR. RE: We are not? Glad I asked.
22 Q. Witness 28, I want you to have a look at a document which is on
23 the screen in front of you, or should be, it's 65 ter 2138. I just want
24 you to confirm that it has your name, date of birth, place of birth, and
25 those details are correct.
1 A. Yes. Yes.
2 Q. Thank you.
3 JUDGE ORIE: Number to be assigned to it. The pseudonym sheet
4 under seal would be number ...
5 THE REGISTRAR: Your Honours, that will be P1210.
6 JUDGE ORIE: Thank you, Mr. Registrar.
7 Please proceed, Mr. Re.
8 MR. RE:
9 Q. Witness 28, in front of you, you have a hard copy of a statement
10 dated the 28th of October, 2007, which has a 65 ter number which I will
11 tell you in a moment. I just want you to have a look at the statement,
12 it's not being publicly shown, it has your number in front of it --
13 JUDGE ORIE: Mr. Re, if you give already the 65 ter number then
14 Mr. Registrar could prepare for --
15 MR. RE: It is 2132, under seal, of course --
16 JUDGE ORIE: Yes.
17 MR. RE: -- and we will file a publicly redacted one now that
18 we've agreed with the Defence on redactions.
19 JUDGE ORIE: So therefore not to be shown to the public.
20 MR. RE: That would be --
21 JUDGE ORIE: Mr. Registrar, that would be -- of course the public
22 version will be available to the public. Yes. Yes -- no, I see it's on
23 the -- on the transcript it appears as if the witness assigns the number
24 to the document.
25 Please proceed, Mr. Re.
1 MR. RE:
2 Q. Witness 28, I just want you to have a look at the statement. Does
3 it bear your signature and is it true?
4 A. Yes.
5 Q. And would you give the same evidence of everything that's
6 contained in those 100 -- I'm sorry, 97 paragraphs with two taken out in
7 this court if you were asked to?
8 A. Yes.
9 MR. RE: On that basis may it be tendered into evidence.
10 JUDGE ORIE: Yes, but I made a mistake earlier when a number was
11 assigned, it was a number to the pseudonym sheet and not to the 92 ter
12 statement. Mr. Registrar, the 92 ter statement would be number ...?
13 THE REGISTRAR: Your Honours, that will be P1211.
14 JUDGE ORIE: Thank you, Mr. Registrar.
15 I do understand that there are no objections, in view of the
16 agreed redactions and one correction, therefore P1211 is admitted into
17 evidence, under seal, public version to follow.
18 MR. RE:
19 Q. What follows is the summary of the Rule 92 ter statement --
20 JUDGE ORIE: I take it that you explained to Witness 28 what the
21 meaning of the summary is?
22 MR. RE: No, I didn't.
23 JUDGE ORIE: Oh. We read the summary of your statement so that
24 the public knows about what the testimony approximately is and not just a
25 piece of paper, where most people would not go and try to find that piece
1 of paper. So just a summary of what is in your statement.
2 THE WITNESS: And where is the summary?
3 MR. RE: It will be displayed in Sanction on the screen.
4 JUDGE HOEPFEL: And the Prosecutor will read it.
5 MR. RE: In 1998 the witness worked as a human rights worker for
6 (redacted), a Belgrade-based NGO --
7 MR. RE: I see Mr. Emmerson is on his feet.
8 MR. EMMERSON: [Microphone not activated]
9 JUDGE ORIE: For technical reasons.
10 MR. RE: She travelled frequently to Kosovo to investigate crimes
11 committed by both Albanians and Serbs. A Serb researcher investigated
12 crimes committed against Serbs, and Albanian researchers interviewed
13 crimes committed against Albanians. They travelled to areas of conflict
14 to investigate whether crimes had been committed.
15 In 1998 the witness was in Kosovo for about a week to ten days
16 every month and, with the other researchers, investigated crimes committed
17 in the Dukagjini area. In early March 1998 she attended the funeral of
18 members of the Ahmeti family in Cirez/Likosane following a MUP attack.
19 JUDGE ORIE: We turn into private session.
20 THE WITNESS: Sorry, that's -- that's actually factual mistake.
21 It was not in my testimony.
22 [Private session]
11 Pages 10166-10168 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 MR. RE:
21 Q. Witness 28, I want to ask you some questions in relation to your
22 statement of the 28th of February, 1998, and I want you to expand and
23 clarify some of the matters there. Could you please turn to paragraphs
24 17, 18, and 19 concerning the attack in Cirez and Likosane on the 28th of
25 February, 1998, and in particular paragraph 18 where you refer to several
1 people, (redacted)
2 A. Yes.
3 Q. In the sentence you say in the middle: "The funeral had an
4 intense political background to it."
5 What was it about the funeral which gave it that intense political
7 A. The number of the people present, the effort they all put to come
8 together, thousands of people came, Albanian flags, the hills and the
9 fields were all covered, the people -- although there was a fear that the
10 Serbian police would major disrupt the way how they would achieve,
11 soldiers in KLA uniforms present. I seen them mingling in the groups. I
12 was far from the place where the speeches were given, but I had feeling
13 that I was present to the real rise of rebellion and the new moment in
14 Kosovo, historical moment.
15 Q. Well, just pause there. In relation to the soldiers in KLA
16 uniforms present, what -- just tell the Court what they added in your --
17 what you observed and how they added to the political background to what
18 was going on.
19 A. I have the impression that they wanted really to show --
20 MR. GUY-SMITH: Excuse me, I hate to interrupt the witness, but I
21 seem to be having some technical difficulties here. I'm not hearing --
22 JUDGE ORIE: Perhaps since the witness is using the voice
23 distortion microphone you might turn -- have to turn up the left volume
24 button manner the usual one.
25 JUDGE HOEPFEL: The red one.
1 MR. GUY-SMITH: Thank you very much. I do apologise for
3 JUDGE ORIE: Mr. Emmerson.
4 MR. EMMERSON: I know we're a very long way from the start of this
5 trial - I'm getting some feedback here - and the ruling the Trial Chamber
6 has given in respect of another witness from this organization, but I do
7 request Mr. Re to avoid matters of opinion, matters of speculation, and to
8 lay the foundation for the testimony he can elicit. I'm not clear at all
9 as to where this line of questioning goes. If it's goes to an issue of
10 fact in the case or -- foundation for it.
11 JUDGE ORIE: At the same time the witness answered in a rather
12 factual way, as a matter of fact. Although it was--
13 MR. EMMERSON: I'm sorry, it's the next question I was
14 particularly concerned about.
15 JUDGE ORIE: Okay.
16 Mr. Re ...
17 [Trial Chamber confers]
18 [Trial Chamber and registrar confer]
19 JUDGE ORIE: Mr. Re, you're invited to refrain from seeking
20 opinion evidence. I take it that you understand that.
21 MR. RE: Any opinion evidence the witness would give in our
22 submission would of course after having laid the appropriate factual
23 backgrounds would assist the Trial Chamber in its determination of the
24 issues of conflict at the time.
25 JUDGE ORIE: Yes.
1 MR. RE: And I will be very careful.
2 Q. What I'm asking you about, Witness, is the -- the presence of the
3 KLA soldiers there, how in your view based upon what you saw it
4 contributed to the political -- the political feeling at that funeral.
5 A. As I said, I had feeling that it is uprising, that those few
6 soldiers I have seen been proud, finally walking free through the mass of
7 the people, they were actual supported by all of these people in -- who
8 were present there. Is that what you asked me for, that's what my --
9 Q. Yes, I'm asking you about how the people there reacted to it.
10 A. They'd been proud.
11 Q. Well -- and did -- I won't said "did." The report or what you
12 observed there has made it into two separate reports, one was
13 the "Spotlight" report, which is Exhibit 6 in this trial, Exhibit P5, I'm
14 sorry, which is "Spotlight" report 26 at pages 3 and 4; and also the Human
15 Rights Watch report, which is MFI -- sorry, not MFI, 65 ter 999 at
16 pages -- at page 91, which is K0364881. Before I go further I'm just
17 going to ask you, the information which you gathered by attending that
18 event and talking to the people, as you described in paragraph 19, was
19 that information used for both the "Spotlight" report and the Human Rights
20 Watch report?
21 A. At that moment I was only employed by (redacted), so
22 I can tell you that my interviews in Nebiu family have been used in
23 (redacted) report. I can't recall this part really went in
24 Human Rights Watch report, that I joined later, except if I can see it now
25 and get reminded.
1 THE INTERPRETER: Please switch all microphones off while the
2 witness is speaking.
3 [Trial Chamber confers]
4 JUDGE ORIE: Please proceed, Mr. Re.
5 MR. RE:
6 Q. Likewise, if I could take you to the next paragraph which is
7 paragraph 20 when you refer to the police operation being mounted against
8 the Jashari family compound in Prekaz, and researchers from the
9 (redacted) going shortly thereafter to investigate what had
10 happened. Paragraph 21 you say: "I used the interviews to prepare the
11 relevant portion of "Spotlight" report number 26."
12 A. Yes.
13 Q. If you could just - which is in the bundle with you - have a look
14 at "Spotlight" report number 26, and that's Exhibit P6 in these
15 proceedings at pages 5 to 6.
16 A. Yes.
17 Q. Now, is that the information -- was the information in that report
18 based upon reports which you sent back from the field, to (redacted), in
20 A. Our researchers, partly me and I prepared the text which then was
21 worked on of course by director of organization.
22 Q. If you could turn to paragraph 25 on the same page of your
23 statement where you say: "Sources within the Serbian police told you that
24 Adem Jashari was known within police circles as the Albanian Arkan."
25 MR. RE: Is that being displayed in Sanction for the Court? Thank
2 Q. Can you just explain to the Trial Chamber, if you can, what is
3 meant by or why they described him as the Albanian Arkan? What did they
4 tell you which enabled you to write this?
5 A. As a background for this information, after massacre and crime
6 committed by Serbian forces against Jashari family, I tried to investigate
7 who actually did commit the crime, and during that investigation I had
8 three different sources, police sources, explaining background and
9 relationship between Adem Jashari and former chief of Srbica police
10 station, if it is important at all for this case. And these sources were
11 highly critical toward corrupted Serbian police chiefs in Mitrovica and
12 Srbica and was telling me that basically they had been protecting for
13 years Adem Jashari, who was Serbian -- like Albanian Arkan. I don't know
14 do you remember who is Arkan. Arkan was paramilitary person in Serbia
15 during 1990s, criminal background, went into different police operations,
16 military operation in Bosnia.
17 Q. My question is: Why were they referring to him as an Arkan? All
18 the rest is in your statement. I just want you to concentrate on the
19 Arkan bit. Why, of all people, Arkan?
20 A. I suppose - but that's really opinion now - I suppose because
21 there were issues with Adem Jashari getting very frequently into conflict
22 with some neighbours, according to those sources, and being kind of tough
24 MR. RE: I note the time. It appears to be just past 7.00.
25 JUDGE ORIE: Yes. If you give me one second.
1 [Trial Chamber and registrar confer]
2 JUDGE ORIE: Witness 28, we had a rather chaotic start. I
3 apologise for that. We hope to be more quiet and more organized Monday
4 when we continue. I hope that you're available on Monday.
5 THE WITNESS: Do I have a choice?
6 JUDGE ORIE: Well, if there would be problems which will be
7 insurmountable, the Chamber will -- certainly would listen to it and to
8 see whether we can find a solution, but we are under quite some time
9 pressure, because as you know your testimony had been scheduled for an
10 earlier stage of the proceedings. And since we're now close to the end of
11 the proceedings we have not a lot of manoeuvring room anymore. But could
12 you come on Monday?
13 THE WITNESS: Yeah, I would like to proceed, to finish with this.
14 JUDGE ORIE: Yes. Then we'd like to see you back on Monday, the
15 5th of November, at quarter past 2.00 in the afternoon in this same
16 courtroom. And I'd like to instruct you that you should not speak with
17 anyone about your testimony, whether already given or whether still to be
18 given, but we would like to see you back on Monday.
19 We adjourn until Monday, the 5th of November, quarter past 2.00,
20 in Courtroom I.
21 --- Whereupon the hearing adjourned at 7.03 p.m.,
22 to be reconvened on Monday, the 5th day of
23 November, 2007, at 9.00 a.m.