Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10429

1 Thursday, 8 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.09 a.m.

5 JUDGE ORIE: Good morning to everyone.

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

7 THE REGISTRAR: Good morning, Your Honours. Good morning 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 Before we start with the housekeeping matters, I would like to

12 make a correction on the record.

13 In the 11th of July decision of the Chamber on the second batch of

14 92 bis witnesses, we admit two statements for witness - and let me just

15 check that there are no protective measures.

16 [Trial Chamber and registrar confer]

17 JUDGE ORIE: As I said, in our 11th of July decision on the second

18 batch of 92 bis witnesses, we admit two statements for witness Rataj

19 [phoen]. The parties are hereby informed that we only admit the 16th of

20 April, 2007 [Realtime transcript read in error "1997"] statement because

21 the other statement is without a 92 bis attestation. So therefore this is

22 now corrected on the record.

23 Then I take it that the parties have received -- no, before we

24 start with the other housekeeping matters, I would first like to deliver

25 the reasons for the decision on the Prosecution's twelfth motion for

Page 10430

1 testimony via videolink. And it is about Witness 23.

2 On the 6th of November, 2007 the Prosecution filed a motion for

3 hearing the testimony of Witness 23 via video-conference link from

4 Pristina on the 12th of November, 2007. On the 7th of November, the

5 Chamber granted the motions with reasons -- the motion with reasons to

6 follow.

7 The Prosecution argues that the witness has children who cannot be

8 left home alone and that there is no one else to take care of them. The

9 Prosecution also argues that the testimony is sufficiently important, as

10 it relates to the alleged abduction and detention of a person named in the

11 indictment.

12 The Defence did not oppose the motion.

13 The Chamber finds, in light of the circumstances of the witness's

14 dependents and the absence of alternative carers, that the witness has

15 good reasons to be unwilling to testify at the seat of the Tribunal. The

16 Chamber also finds the expected testimony to be sufficiently important and

17 the mode of delivery of the testimony to be compatible with the accuseds'

18 right to confront the witness. The Chamber therefore finds, pursuant to

19 Rule 81 bis of the Rules of Procedure and Evidence, that it is in the

20 interests of justice to hear the witness via video-conference link.

21 And this concludes the Chamber's reasons for granting the

22 Prosecution's twelfth motion for testimony via videolink.

23 I take it that the parties have received a short agenda, an agenda

24 which is mainly a list of numbers with mainly MFIs organised in a way

25 which is in accordance with witnesses.

Page 10431

1 I'd like to go through that list and see whether we can resolve

2 matters.

3 Mr. Re.

4 MR. RE: Yes. Thank you, Your Honour. We do have it. There

5 is -- can I add one list to -- sorry, one item to the agenda, and that is

6 a -- a witness scheduling issue; namely, that of the Prosecution's

7 Belgrade investigator Roel Versonnen, who was scheduled to testify -- I

8 think it's intended but only for one specific purpose in relation to

9 identification, in relation to a 92 quater application. Mr. Versonnen is

10 actually in The Hague and Mr. Guy-Smith made an application to delay his

11 testimony. I'm wondering -- he's certainly available to testify on

12 Monday, if we make the arrangements today. It would be very short. Would

13 it be possible for him to testify on Monday, given the state of the ruling

14 and submissions on 92 quater application and for the Trial Chamber to hear

15 his evidence provisionally, subject, of course, to the admission or

16 otherwise into evidence of the 92 quater statement. Otherwise, we'll

17 reach the situation where the case is closed and Mr. Versonnen hasn't

18 testified. And he's one of those witnesses we can just bring with a

19 day's -- or a day or two's notice.

20 JUDGE ORIE: Yes. Of course, the Chamber had some concerns that

21 where it made an exception for the date where the Prosecution's case

22 should be concluded that the exception made for the videolinks is now --

23 the additional time seems to be claimed more or less for other witnesses

24 as well.

25 Is the -- first of all, I'd like to know from the Defence whether

Page 10432

1 there's any problem if Mr. Versonnen could testify --

2 For how long, Mr. Re?

3 MR. RE: We have nothing to ask him. It was a 92 bis statement,

4 and the Trial Chamber's ruling was he had to testify.


6 MR. RE: And the objection was Mr. -- he was here already in

7 September and Mr. Guy-Smith --


9 MR. RE: -- asked for it to be delayed and the Trial Chamber

10 accepted his -- his application --


12 MR. RE: It was delayed. That --

13 JUDGE ORIE: It was delayed.

14 Mr. Guy-Smith.

15 MR. GUY-SMITH: Well, it was more than delayed. It was actually

16 conditioned upon the Trial Chamber's ruling with regard to the admission

17 of a whole series of statements and -- which is the present subject matter

18 of a 92 quater submission. It was considered at that time to be premature

19 to let it in. I -- I still think it's premature to let it in. And until

20 there's been a resolution of that particular matter, I --

21 JUDGE ORIE: We will consider the matter. We will consider the

22 matter.

23 MR. GUY-SMITH: I would make an objection.

24 JUDGE ORIE: We'll consider the matter during the first break.

25 That's -- no travel arrangement, no passport issues, no visas. So

Page 10433

1 therefore we can delay our deliberations on that for one hour. Yes.

2 Anything else?

3 Then I'd like to start with the long list.

4 The first one, MFIs D89 and 90. The first question would be

5 whether the Brahimaj Defence still tenders D89.

6 MR. HARVEY: Yes, Your Honour, we do still tender those.

7 JUDGE ORIE: Could you further explain what --

8 MR. HARVEY: Your Honour, I'm sorry.


10 MR. HARVEY: I'm not sure that I'm working from the -- the same

11 document. I do apologise. Could you just give me one moment here.


13 [Defence counsel confer]

14 JUDGE ORIE: We are -- we are talking about, for D89, a series

15 of --

16 MR. HARVEY: I apologise.


18 MR. HARVEY: I was looking at the wrong document. We do not still

19 tender those documents.

20 JUDGE ORIE: Then D89, that number is now --

21 [Defence counsel confer]

22 JUDGE ORIE: I was about to say "vacated," but I have not yet said

23 that.

24 MR. HARVEY: I'm helpfully reminded by Mr. Troop. D89 we do

25 tender. It's D90 that we do not.

Page 10434

1 JUDGE ORIE: Yes. Now, D89 is a bundle of documents.

2 MR. HARVEY: Yes.

3 JUDGE ORIE: I think especially the third page of that document

4 witness Ded Krasniqi testified that he did not provide the information as

5 we find it there. And the Chamber wondered what -- what the value of this

6 document is. Could you please further explain that.

7 MR. HARVEY: Yes, Your Honour. The -- the -- we accept that it is

8 potentially of limited value, but there is an indication in the document

9 that the deceased Pal Krasniqi may have been seen elsewhere at a later

10 stage.

11 JUDGE ORIE: Seen or -- seen or heard?

12 MR. HARVEY: Heard, I believe. Yes.

13 JUDGE ORIE: Yes. I take it that you're referring to the -- to

14 the question and answer to Ded Krasniqi in cross-examination whether

15 another family member told him about a telephone conversation he would

16 have had mid-August.

17 MR. HARVEY: Indeed.

18 JUDGE ORIE: Yes. And so you say in this document this is

19 corroborated, that he was heard through telephone?

20 MR. HARVEY: That's -- that's correct.

21 JUDGE ORIE: Yes. And do you remember -- because it's -- it's a

22 document with several items in it. Do you happen to remember exactly

23 where that is?

24 MR. HARVEY: If you could give me a moment, Your Honour, I'll come

25 back to you on that.

Page 10435


2 MR. HARVEY: Because I agree --

3 JUDGE ORIE: If you could give me -- then at that moment I'll try

4 to get D89 on my screen so you can guide us where to find that or just

5 tell us. Yes?

6 MR. HARVEY: Yes, indeed.

7 JUDGE ORIE: Okay. So D89 we'll get further information as --

8 yes.

9 D90, then, therefore, is not tendered any more?

10 MR. HARVEY: Not tendered any more, Your Honour.

11 JUDGE ORIE: Yes. I do understand - but, Mr. Registrar, please

12 correct me if I'm wrong - that if a document is not tendered any more,

13 then it will be -- the number will be vacated. If, however, admission is

14 denied, then the status of such a document changes from F -- MFI into MNA,

15 which stands for "marked not admitted."

16 [Trial Chamber and registrar confer]

17 JUDGE ORIE: D90 then is vacated, skipped from the list.

18 We move to the next item, which is P30, which is a DNA report. If

19 we look at the forensic agreed facts list dated the 7th of April, then it

20 seems that the parties would have agreed on the matter which is dealt with

21 by P30. So, therefore, if R-31 and R-35 would remain on the list of

22 agreed facts - and that's, of course, still uncertain for the Chamber -

23 then I think there's no need for P30 to be tendered and admitted. If,

24 however, R-31 and R-35 do not remain on the list of agreed forensic facts,

25 then, of course, we'd have to take a decision, because we could not expect

Page 10436

1 under those circumstances the Prosecution to withdraw that document.

2 Mr. Re.

3 MR. RE: That's correct, yes.

4 JUDGE ORIE: Yes. But now which is the case? Will R-31 and -35

5 remain on the list? There's agreement on that?

6 MR. RE: I think so. I'm pretty sure it is.


8 MR. RE: It's got to be signed, but I'm pretty sure it's coming.

9 JUDGE ORIE: Yes. Well, you will understand that for the Chamber

10 it's -- we're not working on the basis of expectations on what will be

11 agreed upon, but we are usually working on commitment by the parties.

12 I now do understand that the parties, the Prosecution and Defence,

13 all Defence teams, agree on R-31 and R-35 as an agreed forensic issue.

14 MR. EMMERSON: That's correct.

15 JUDGE ORIE: That's correct.

16 Then I take it, Mr. Re, that you apply for P30 being vacated.

17 MR. RE: Yes, of course, subject to us -- if the agreement isn't

18 signed, reinstating it, but yes.

19 JUDGE ORIE: If the agreement on this will not be signed, the

20 Prosecution is in a position to apply for reinstating the now vacated P30,

21 which is a DNA report. Transcript pages -- relevant transcript pages are

22 1595 up to 1597.

23 Then we move to the third item on the agenda, which is about D41.

24 MR. EMMERSON: Yes. I can --

25 JUDGE ORIE: We -- yes.

Page 10437

1 MR. EMMERSON: I can very shortly report that matter is in hand.

2 I indicated yesterday that the video would be reduced. It will be reduced

3 during the course of today and a further version substituted for the

4 existing exhibit number. And then it is tendered.


6 Mr. Re, may I take it that if it's just a redaction, downsizing it

7 to the swearing-in ceremony, that there are no objections?

8 MR. RE: I don't think we ever did have an -- did have an

9 objection. I think the issue was all along the Trial Chamber was

10 concerned about the length of it. We don't object to it, no.

11 JUDGE ORIE: Yes. Yes. Okay, fine.

12 Then --

13 Mr. Harvey.

14 MR. HARVEY: Would you like me to come back to D89, Your Honours?

15 I do have the relevant pages, if it would be helpful.

16 JUDGE ORIE: If you would let me finish D31 -- D41, and then I

17 will come back to you immediately.

18 MR. HARVEY: Yes, I apologise.

19 JUDGE ORIE: D -- the next question now is whether the reduced

20 video is now tendered under the same number or whether it gets another

21 number.

22 Mr. Registrar, this is the type of technicalities -- I think the

23 new video, the reduced-size video, could be under D41.

24 Is there a new Defence number attached to the video or is it the

25 old number?

Page 10438

1 [Trial Chamber and registrar confer]

2 JUDGE ORIE: The newly uploaded e-court video, which is just a

3 portion of the long video that was uploaded earlier, is admitted as D41.

4 And if the Prosecution has not reviewed yet whether -- of course, we

5 wouldn't expect anything else than that just a portion of it. But if

6 there would be any objection about it that something was added or

7 something had become unclear or whatever, then within two days the Chamber

8 would like to hear from the Prosecution, and then we might reconsider the

9 decision, but it's -- so therefore it's not a provisional admission into

10 evidence; it's admitted into evidence with a possibility to apply for

11 reconsideration within two days.

12 Then we go back to D89.

13 Mr. Harvey.

14 MR. HARVEY: Your Honour, pages 3, 18, 20, and 36 all make

15 reference to the September sighting of Pal Krasniqi in a KLA uniform in

16 Nepolje. Those are the relevant ones.


18 Is there any objection, Mr. Re, against D89?

19 MR. RE: This is the missing person's report of the -- have I got

20 the right one? The OMPF missing person's report?

21 JUDGE ORIE: Yes. It's --

22 MR. RE: No, there's no objection.

23 JUDGE ORIE: That's in total 38 pages document.

24 [Trial Chamber confers]

25 JUDGE ORIE: The Chamber will further deliberate on whether we can

Page 10439

1 admit D89.

2 MR. RE: When I say there's no objection, I mean, the -- the basis

3 is simply this: The Prosecution had intended to tender these, if

4 necessary, in relation to the other victims. It's only on that basis.

5 Our -- our submission on its weight would be it has almost no weight,

6 because there's no indication of who made the statement, when it was made,

7 the circumstances in which it was made, or anything like that. So I'm not

8 objecting because -- on principle I don't object to these documents being

9 tendered, but the use that can be made of them is so limited that my

10 objection is in -- in a way a fairly meaningless one. It's a --

11 JUDGE ORIE: Of course, if the -- if the probative value of the

12 whole of the document or parts of the document is zero, then, of course,

13 it should not be admitted. If, however, you say it's almost zero, then,

14 of course, we are -- of course, the -- the issue there appears to be to

15 what extent this information can be tested. And I know that it's usually

16 the parties that start quarreling about testing evidence. But, of course,

17 the Chamber is also considering how reliable certain information is, how

18 well it is sourced. The Chamber has expressed at various occasions

19 concerns about unsourced material.

20 The Chamber will consider it. Thank you for your clarification.

21 Then we move on. MFI D135 being a portion of the pre-trial brief

22 in another case before this Tribunal.

23 Mr. Emmerson.

24 MR. EMMERSON: Yes. The -- the position is that we recognise that

25 those are Prosecution allegations. The matters were put and examined with

Page 10440

1 the witness. The Defence recognised in those circumstances that the

2 admission of the document as an exhibit is not necessary, but it had been

3 left on the basis that the parties would seek to agree a schedule of basic

4 facts concerning the recovery of the bodies from the Batajnica grave and

5 their relationship to individuals within the indictment area in Meje.

6 Perhaps in those circumstances we may simply not press the

7 tendering of this passage of the pre-trial brief in Milutinovic but deal

8 with the matter by way of seeking with the Prosecution a very short

9 stipulation as to what the essential facts are.

10 JUDGE ORIE: Yes. If I look at the document, of course, the

11 probative value would, first of all, be what the Prosecution has put in

12 another case, which might be not very relevant, or at least this Chamber

13 does not consider that it's our task now to -- to judge upon the

14 consistency of the points taken in different cases.

15 If we are talking about the presence of Mr. Djordjevic at the site

16 of the investigation, there is direct evidence for that. I think Witness

17 69 tells us about that.

18 MR. EMMERSON: There's also direct evidence --

19 JUDGE ORIE: Yes, there's more evidence. I just give one of the

20 clear -- clear pieces of evidence which ...

21 And then, of course, another matter is in what other activities

22 Mr. Djordjevic may have been involved. The relevance of that is, of

23 course, limited, if there's any relevance at all.

24 But I think it's -- it's clear on the record now that questions

25 have been put in this respect. It's clear that the Defence expresses

Page 10441

1 its -- first of all, points at the presence of Mr. Djordjevic at that

2 place at that time and --


4 JUDGE ORIE: -- wonders whether any conclusions could be drawn

5 from the fact that Mr. Djordjevic has been accused of being involved in

6 operations in which bodily remains were removed from one place and

7 transported to another place far away from there --

8 MR. EMMERSON: Yes. I think --

9 JUDGE ORIE: -- apparently to conceal the -- the presence of those

10 bodies and making it impossible to further investigate all these bodies.

11 MR. EMMERSON: Yes. We have since this document was originally

12 marked for identification the evidence that was adduced concerning the

13 interview with the RDB chief Rade Markovic, which makes direct allegations

14 against Mr. Djordjevic in person for involvement in that operation.

15 And -- and as Your Honour rightly points out, the position so far as the

16 Defence is concerned, is that when the Trial Chamber is evaluating all of

17 the other evidence concerning the canal and determining what inferences

18 are properly to be drawn, whilst we wouldn't, of course, be inviting the

19 Trial Chamber to make findings of fact concerning Mr. Djordjevic's

20 involvement in other cases, it is in background factual material which we

21 say is relevant to determining what inferences are properly to be drawn.

22 JUDGE ORIE: So therefore D30 -- 135, as far as the Haradinaj

23 Defence is concerned --

24 MR. EMMERSON: Is unnecessary.

25 JUDGE ORIE: -- could be vacated.

Page 10442

1 Mr. Guy-Smith.

2 MR. GUY-SMITH: Yes, I would agree with Mr. Emmerson in that

3 regard.

4 I would just like a point of clarification, if -- if I could, with

5 regard to the issue of the consistency of the positions of the parties

6 taken in different cases.

7 You indicated that you did not believe it was your task now, and

8 I'm assuming that means with regard to what we're doing at this particular

9 moment, which is a determination of what exhibits are properly in or

10 out --

11 JUDGE ORIE: It might even go beyond that.

12 MR. GUY-SMITH: That's why -- that's why I was asking the

13 question. It may go beyond that.


15 MR. GUY-SMITH: So that may well be an issue.

16 JUDGE ORIE: It may be an issue. I wouldn't encourage the parties

17 to pay a lot of attention to finally seek a large debate in this case on

18 whether or not a case is -- the Prosecution has taken a similar position.

19 Because, of course, then the next question would be if it's inconsistent,

20 which would be the right position. We would then have to -- consistency

21 as such might not be an issue. We have to --

22 MR. GUY-SMITH: Well, the reason I'm asking the question is that

23 there's a --


25 MR. GUY-SMITH: I appreciate there's not a particularly strong

Page 10443

1 body of law right now here at the Tribunal. There is a fair body of law

2 with regard to this issue throughout the world, which is why I'm just

3 raising the issue, because I wasn't sure.

4 JUDGE ORIE: Yes. And I do agree with you that there does exist

5 such a body of law, but one should keep also in mind very much that the

6 organisation of the prosecutorial services may play an important role

7 there. It's a highly complex matter. If you want to raise the issue, of

8 course, the Chamber can't stop you. The Chamber is not encouraging you to

9 do so, and certainly not on the basis of this point.

10 MR. GUY-SMITH: Fine. I just wanted to make sure that I was clear

11 about what the thinking was.

12 JUDGE ORIE: Yes. Then D135 is vacated, unless Mr. Harvey now

13 jumps up and says that he wishes to go in a different direction.

14 MR. HARVEY: I'm not jumping.

15 JUDGE ORIE: D135 is vacated.

16 We move on to Witness 64, where we have a couple of documents. I

17 would like to start with D159. Clothes -- a picture shows clothes.

18 MR. EMMERSON: Yes, it's a picture showing clothes with the

19 identification number R-19.


21 MR. EMMERSON: Which was the focus of a certain amount of

22 cross-examination with that witness, and so that is tendered.

23 JUDGE ORIE: Yes. Well, you still want to tender it?

24 MR. EMMERSON: It is tendered.

25 JUDGE ORIE: Is there any objection, Mr. Re?

Page 10444

1 No objection. Then D159 is admitted into evidence.

2 Then we move on to P908, which is also a picture which is

3 described by Witness 64.

4 Are there objections against this document?


6 JUDGE ORIE: No objections. The same is true for the other two

7 Defence counsel.

8 Then P908 is admitted into evidence.

9 We move on to P909, which are meteorological data.

10 MR. EMMERSON: Sorry, will you just give me a moment.

11 JUDGE ORIE: Yes. This is the short report giving the rainfall in

12 quite many months, both in batch and ...

13 MR. GUY-SMITH: If we could pass that for -- for but a moment just

14 so we could do some double-checking and come back it to.


16 MR. EMMERSON: Yes, I'm afraid I'm in the same position. That one

17 had slipped through our nets, and if we could come back to it later in the

18 morning, we'll have an answer for the Trial Chamber.

19 JUDGE ORIE: Yes. It's the precipitation in various places. Pec

20 and an airport which is closer to Lake Radonjic, it seems, on the map as

21 Pec is.

22 We'll then keep P -- one second. P909. We'll return to that.

23 P910.

24 MR. EMMERSON: That --

25 JUDGE ORIE: That is a picture, a page with -- I think we're

Page 10445

1 talking about -- mainly about page 11 of P910, where these pictures are

2 mentioned by Witness 64 in paragraphs 15 and 113 up to 115 of his

3 statement. And I think the issue is mainly about the first page of -- the

4 first picture on page 11, where the witness testified that this is not the

5 body of Mr. Perovic shown there but the body of Milo Rajkovic. That seems

6 to be an issue.

7 Mr. Emmerson, you objected against this picture.

8 MR. EMMERSON: Yes, we object to this collection of pictures on

9 grounds of relevance.

10 JUDGE ORIE: Mr. Re.

11 MR. RE: My understanding is that it's relevant for a number of

12 reasons, one of which is the armed conflict, to show the damage to

13 Vujesevic Lubica's [phoen] house. The descriptions show the -- the

14 descriptions in English tell you about the damage and also to

15 Vujosevic Zegorka's [phoen] house, and it goes to the conflict in the

16 relevant period, because there are -- it appears there are photographs

17 taken in September 1998 at the time of the armed conflict. And in

18 addition, there are the photographs of the -- all the other things there

19 and the bodies, which it would appear, also relevant to Mr. -- Witness

20 64's evidence of the crime scene investigation and put his evidence in

21 context.

22 JUDGE ORIE: Mr. Emmerson.

23 MR. EMMERSON: I think, if I may say so -- I hope I'm not

24 misunderstanding the import of Mr. Re's submission, but there's no

25 evidence as to the circumstances in which that damage was inflicted on the

Page 10446

1 properties concerned. And beyond being photographs of houses with damage

2 to them, of which there must be hundreds of thousands, it's difficult to

3 see how photographs of houses with damage to them in those circumstances

4 materially assists the Trial Chamber, but it may not matter much one way

5 or the other.

6 And as far as the photographs of the post-mortem are concerned,

7 there's no evidence whatsoever as to what it relates to.

8 JUDGE ORIE: And there it might be relevant to know that one of

9 the bodies shown in one of these photographs, the witness says it's not A

10 but it's B.

11 MR. EMMERSON: Well, yes. But without it -- there being further

12 evidence on -- on the subject matter, it's difficult to see how it crosses

13 the threshold of relevance. But I'm -- and for much the same reason, it's

14 not an objection that need take up a great deal of time.

15 MR. GUY-SMITH: We would join the objection to the extent that

16 there are -- that the photographs are photographs that occurred in -- in

17 September of 1998 and the basis for their admission, according to the

18 Prosecution, is that there was an armed conflict at that time. I don't

19 think there is much of an argument with regard to September.

20 JUDGE ORIE: Mr. Re, what about the September issue?

21 MR. RE: Well, according to the description of some of them,

22 they're photographs showing metal barricades on the road to the village of

23 Lodza, which is in the area, on the 16th of August, 1998. There's

24 photograph 6, images of weapons, equipment, and explosive devices found in

25 the terrorist staff in Lodza Pec on 16th of August, 1998. They're all

Page 10447

1 related to the discovery of a weapons and system of trenches and bunkers

2 during the liberation of the terrorist centre, which, of course, is the

3 KLA, in Serbian MUP terminology, in Lodza Pec on the 16th of August.


5 MR. RE: So it really and truly goes to the period before the

6 bodies were found.

7 JUDGE ORIE: Mr. Guy-Smith, you're referring to no dispute about

8 September. What about August? Mr. Re is referring to pictures taken

9 mid-August.

10 MR. GUY-SMITH: I'm in the Chamber's hands.

11 JUDGE ORIE: Any of the other counsel wants to say anything

12 especially about the dates?

13 MR. RE: Can I just add that it also goes to the extent of the

14 weaponry, the arming. If you can see the photographs of -- of all the

15 shells and the mortars and the machine-guns and the uniforms, it's -- it

16 corroborates much of the other evidence in the case about the strength of

17 the -- of the KLA's weaponry. And you can see photographs here of

18 trenches and of what we would -- what we would submit is a fairly

19 organised system of defence, which goes to the organisational level of the

20 KLA in their conflict with the Serbian MUP and the VJ, and it goes to the

21 organisation and the level of the intensity of the armed conflict and the

22 organisation of both parties, if you look at the photographs of trenches

23 with sandbags and tunnels being dug and the weaponry seized. It's all

24 highly relevant, in our submission, for the Trial Chamber's understanding

25 of the complexity of the KLA's organisational structure.

Page 10448

1 And the photograph, I'm told by Mr. Dutertre, relates to a body

2 found in August 1998; that is, the -- sorry, September -- discovered in

3 September but -- sorry, but killed before. And that was the kidnapped

4 police sergeant, Sergeant Perovic, who was -- there's been some evidence

5 in the case, was kidnapped by the KLA on the 6th of July, 1998 in Breznjak

6 [phoen], Pec, and found on the 16th of August, 1998 during the search. So

7 it's all relevant to the modus operandi of the KLA.

8 I think the evidence was from Mr. Rade Repic and Mr. Stijovic as

9 to the disappearance of that particular Serbian police officer, both

10 testified as to his disappearance and kidnapping by the KLA. And this --

11 this links the two as corroborative evidence of the joint criminal

12 enterprise.

13 JUDGE ORIE: Since Mr. Re has added something to his observations

14 about relevance, I give an opportunity to the Defence to further respond

15 to that.

16 MR. EMMERSON: Just very briefly. The testimony of the Witness

17 783993 is that the photographs are not in fact photographs of Captain

18 Perovic and --

19 JUDGE ORIE: Mr. -- that's true, I think, only for the first

20 photograph on page 11.


22 JUDGE ORIE: Not necessarily -- because I think that the second

23 photograph on that same page - but I've got only the B/C/S version in

24 front of me - also from -- says something about Perovic, but the remark

25 was only about the photo number 1, isn't it.

Page 10449

1 MR. EMMERSON: I'm just --

2 JUDGE ORIE: That that was not Mr. Perovic but someone else.

3 MR. EMMERSON: I'm having to check the transcript, but I've

4 certainly got the record. I'm not entirely sure what it was that was

5 being shown to him at that time.

6 JUDGE ORIE: If I could assist you. 7885 might help you out.

7 But apart from that issue --


9 JUDGE ORIE: -- Mr. Re now brought to our attention that these

10 photographs are relevant for the structure, the organisation, the size of

11 weapons, the number of weapons, the type of weaponry available.

12 MR. EMMERSON: Well, they're -- they're photographs. There's no

13 evidence as to the circumstances in which they were taken or as to the

14 provenance directly of them. We're in the Trial Chamber's hands as far as

15 that matter is concerned.

16 JUDGE ORIE: Thank you for that. The Chamber will consider the

17 matter and decide it.

18 Then we move to P912, which is a pseudonym sheet where, I take it,

19 that there's no problem to have it admitted. P912 is therefore admitted

20 into evidence.

21 We move on. Next on our agenda are MFIs related to the witness

22 Pappas. As a matter of fact, I think there was a kind of a mistake.

23 Earlier we had -- there was some doubt as whether D64, D65, and D115 were

24 admitted into evidence, but I think we now admitted them on the 6th of

25 November.

Page 10450

1 And the remaining question, then, is whether D115 --


3 JUDGE ORIE: -- should be under seal.

4 [Trial Chamber confers]

5 JUDGE ORIE: We just take a moment.

6 Then D115, should that be under seal? It might be -- it might

7 be -- I think it might be Rule 70 material.

8 MR. EMMERSON: It certainly is originally Rule 70 material. I

9 don't know whether or not the Prosecution ...

10 JUDGE ORIE: Mr. Re.

11 MR. RE: If it's the ECMM report, it should be admitted under

12 seal, yes.

13 JUDGE ORIE: Yes, then D115 is admitted -- was admitted, but now

14 added to that decision is that it is admitted under seal.

15 MR. EMMERSON: I can make it clear. As far as D64 and D65 are

16 concerned, the matter is left over with a -- with an invitation to the

17 Prosecution to make representations as to weight if they thought it

18 appropriate.


20 MR. EMMERSON: It may be that I can save them the task if I make

21 it clear on the record that the only purpose of having those documents

22 there is in order to be in a position to evaluate the responses of

23 Mr. Pappas when they were put to him in cross-examination. In other

24 words, there's no suggestion that the documents themselves stand as

25 evidence of the truth of their content.

Page 10451

1 JUDGE ORIE: Mr. Re, on the 3rd of October you asked for an

2 opportunity to make submissions on the weight, although you did not object

3 to D64 and D65. You have an opportunity now to make such submissions.

4 MR. RE: It would be too extemporary even for me to attempt at

5 this particular point. I just can't do it at the moment. I apologise.

6 JUDGE ORIE: If later today you think you could, I -- I would

7 still -- the Chamber would still allow you to do it. If not, then you've

8 asked for an opportunity. The opportunity has been given. You have not

9 used it. And then we move on.

10 MR. RE: I'll ask Mr. Di Fazio to avail himself of the

11 opportunity, Your Honours.

12 JUDGE ORIE: Yes. Unless you --

13 MR. RE: Yes.

14 JUDGE ORIE: -- come back to it, the Chamber considers the matter

15 to be dealt with.

16 We then move on to P367, which I think we invited the parties to

17 agree upon as far as admission is concerned.

18 MR. EMMERSON: Yes. That --

19 JUDGE ORIE: It's the 92 ter statement.

20 MR. EMMERSON: Yes. The -- there has been no agreement between

21 the parties.

22 Would Your Honour just give me a moment. I've got the papers

23 available to me.

24 There is an objection to paragraph 54 of the 92 ter statement

25 beyond the second sentence. Paragraph 54 refers to the cleaning of the

Page 10452

1 canal in 2002 during which the witness says in the second sentence of

2 paragraph 54, "I have seen with my own eyes the bushes and the debris at

3 this part of the canal." No objection is taken to that.

4 It then continues to express opinions about the ages of the

5 vegetation that was observed four years after the indictment period.

6 Now, during the course of this witness's testimony - and this was

7 before we had developed the practice of pre-testimony meetings to resolve

8 differences of opinion about the admissibility of aspects of testimony - I

9 raised this objection on the record before the witness testified at 5988,

10 lines 8 to 14.

11 The witness then testified both that he had not been to the

12 relevant section of the canal at any time prior to 2002. And further, at

13 page 6002, lines 22 to 25, when asked whether he was in any position to

14 comment on the state of the vegetation at that point in 1998, he replied

15 that he could not.

16 I then raised the issue again after his testimony, and that is at

17 6064, line 18. It was wrongly raised in private session and then

18 mentioned again in open session immediately -- at the very end of that

19 afternoon. I'm afraid the page number has come off the bottom of the

20 transcript here, but the very end of that afternoon, the 21st of June,

21 Your Honour raised it with me, noting that I had asked in private session

22 for the opportunity to address this issue of opinion evidence

23 objectionably included in the 92 ter statement, and the matter was left

24 over at that stage because we ran out of time.

25 So that is the issue. It's an outstanding objection.

Page 10453

1 I just -- if I may, the passage I'm referring to, the -- the Trial

2 Chamber at that stage had been indicating that where 92 ter statements

3 contained objectionable expressions of opinion from a witness of fact who

4 is not qualified to express the opinion, I was reminded in these words:

5 "Please think it over, to what extent what you're going to say is not

6 already on our minds. That is opinion evidence. The Chamber is well

7 aware of what is opinion and what is fact and usually takes already into

8 consider that opinion is not primarily to be given by a witness of fact."

9 Obviously the objection here is -- is as to an expression of

10 opinion as to a matter which requires expertise; namely, the aging of

11 vegetation based on the observation of size or diameter of tree stumps.

12 In those circumstances, no objection to the witness describing

13 what he saw, but there is an objection to the relevant passage in

14 paragraph 54 and one which was raised at the time that has never been

15 resolved.

16 JUDGE ORIE: Yes. It could be at the edge of what ordinary

17 persons establish. I mean, if you take out the -- if you leave in the

18 size of 18 centimetres, then of course the next question is whether that

19 witness or whether the Chamber could draw any inferences from 18

20 centimetres.

21 MR. EMMERSON: Well, unless you know what type of tree it is, it's

22 very difficult in those circumstances to draw direct inferences as to --

23 as to what period of time one is referring to. And particularly the

24 concern that I have is that the witness says in terms on the transcript

25 that he's unable to say what the state of the vegetation was in 1998.

Page 10454

1 JUDGE ORIE: Yes. No, I'm just drawing your attention to the fact

2 that paragraph 54 contains both portions of factual information and --

3 MR. EMMERSON: Yes. Yes, I'm sorry. I make it clear insofar as

4 the witness is -- is describing, his recollection of the -- of the

5 physical dimensions, then if I included that in the sweeping -- sweep of

6 the objection, then I exclude it.


8 MR. EMMERSON: It's the -- it's the inferences that are drawn from

9 it.

10 JUDGE ORIE: Yes. Yes, what could have been 15 years and what --

11 whether 18 years and 18 centimetres would match, yes or no. That's --

12 these are the kind of issues you're -- yes.

13 MR. EMMERSON: Yes. At the end of it, the witness described the

14 appearance of that section of the canal in his testimony and in his 92 ter

15 statement as being heavily overgrown in 2002 but said in terms he wasn't

16 in a position to say either what it was like in 1999.

17 JUDGE ORIE: Yes. So you take issue, paragraph 54 mainly on

18 inferences and expert opinion.

19 MR. EMMERSON: And opinion, Your Honour, yes.

20 JUDGE ORIE: That's clear. We will decide the matter.

21 MR. RE: Your Honour, could I just say the Prosecution does press

22 that, and we do emphasise that the witness only says "could." I think the

23 Trial Chamber is very much alert to that use of the conditional "could,"

24 as opposed to "is" or "was." And it's a lay expression based upon someone

25 living in the area and no doubt seeing the trees of the type that grow

Page 10455

1 around there, as opposed to, say, Australia, where eucalypts grow to full

2 height within 7 years and could be, you know, 10 metres high within 7

3 years, that sort of thing.

4 JUDGE HOEPFEL: Please, please. A little slower.

5 MR. GUY-SMITH: I believe that Mr. Re's submission points out the

6 precise difficulty with regard to the objection that was made by

7 Mr. Emmerson.


9 MR. GUY-SMITH: I happen to live in a stand of eucalyptus trees

10 when I'm not in The Hague, and I would take an entirely different position

11 with regard to -- to those kinds of things. And I know that my lay

12 opinion would be discounted by most.

13 JUDGE ORIE: The Chamber will consider the matter. And at this

14 moment leaves the botanical garden.

15 We then move on to the Dunjic exhibits. I think we received from

16 Mr. Dutertre a list of exhibits that should remain confidential, and that

17 lists -- list consists of - and I slowly go through it - P618, which is

18 the 92 ter statement of Professor Dunjic. Under seal should be pages 62

19 and 63, pages 79 and 80, page 82, and page 98.

20 Then P672, pages 8 and 9 should be under seal.

21 Next item is P695. This DNA report should in its entirety be

22 under seal.

23 Next item is P706, of which page 7 should remain under seal.

24 Next item, P711, of which page 6 should be under seal.

25 P712, page 17 should be under seal.

Page 10456

1 P742, page 4 should be under seal.

2 Mr. Dutertre, this is the complete list of those exhibits or

3 portions of exhibits that should remain under seal.

4 The remainder of the exhibits which were introduced through

5 Professor Dunjic are now public. And, Mr. Dutertre, have you already

6 prepared the redacted versions of those documents that are not in its

7 entirety under seal but where only certain pages are under seal?

8 MR. DUTERTRE: [Interpretation] Mr. President, these redactions may

9 be done today. We were expecting a ruling. But this is going to be done

10 immediately, forthwith.

11 The difficulty, according to what I understood, was that -- it was

12 difficult technically speaking to keep under seal part of a document. It

13 should have been the whole document which had to be under seal and not

14 only part of the document. This is what I had understood after the --

15 discussing the matter with the Registry at the time. And because of these

16 technical aspects, I was not quite sure how to proceed.

17 [Trial Chamber and registrar confer]

18 JUDGE ORIE: Mr. Dutertre, the Chamber suggests the following:

19 As far as the -- these documents are concerned where only one or two pages

20 are in need of being kept confidential, there's no evidentiary issue.

21 It's just what the public would know about these documents. So a solution

22 might be where the documents in its entirety are admitted under seal, that

23 the Prosecution files public versions of these documents. It has no

24 impact whatsoever on the evidence the Chamber will consider. It's just a

25 way of informing the public of those portions of the evidence which are

Page 10457

1 admitted under seal but the other pages not are in need of any protection.

2 By filing them as public documents, the evidentiary -- the technical

3 evidentiary situation would not change in any way, and at the same time

4 the public is informed by the Prosecution about the content of those

5 portions of evidence admitted under seal which do not need any protection.

6 So you are invited to make public versions and to file them,

7 unless this technical solution would be opposed by any of the Defence

8 counsel.

9 Then that's how we will proceed.

10 Therefore, where I earlier was pointing at certain pages only, it

11 should be clear that the 92 ter statement P618 in its entirety is admitted

12 under seal but you'll file a public version. The same is true for P672.

13 For P695 it was already clear that it should be under seal and there will

14 be no public version of that. P706, also admitted entirely under seal but

15 a public version to be prepared. The same is true for P711, 712, and 742.

16 All the other exhibits are public.

17 Then we move on to three documents introduced through witness

18 Radovan Zlatkovic. We're talking about P864, P865, and D153. The first

19 two documents are annexes to the 92 ter statement. The parties are

20 invited to make further submissions.

21 Mr. Emmerson.

22 MR. EMMERSON: My records indicate that P864 is annex 10, which is

23 the document that I deployed in cross-examination concerning various

24 investigations conducted in the area adjacent to the canal and lake.

25 I know that Mr. Guy-Smith had an objection at one point in

Page 10458

1 relation to annex 10, so perhaps I could just defer to him to deal with

2 that at this stage.

3 MR. GUY-SMITH: Yes. To the extent that annex 10 was used to

4 indicate information that was recorded by Serbian authorities and if that

5 is the purpose for which the annex is being introduced, my objection would

6 be withdrawn. In the event it's being used for purposes of establishing

7 the truth of the matter asserted there in the document, then I continue to

8 have some difficulties with the annex.

9 JUDGE ORIE: Of course, admission is -- is not conditional. It's

10 admitted into evidence or not. And, of course, the parties could express

11 what they mainly seek to establish through such a document, but if it is

12 admitted into evidence, it's not conditional to -- only to establish it or

13 to establish that. The Chamber will look at the evidence in its entirety.

14 Another issue, of course --

15 MR. GUY-SMITH: I appreciate that.

16 JUDGE ORIE: -- would be that where Mr. Emmerson cross-examined on

17 this exhibit, to what extent admission could be limited to the case

18 against one accused or to another accused. That's a matter we have not

19 explored in the past.

20 From your observations, I understand that finally - and we are now

21 talking about P864 -

22 MR. GUY-SMITH: That's correct.

23 JUDGE ORIE: That you put a marker there.

24 MR. GUY-SMITH: That is true.

25 JUDGE ORIE: That marker is on the record.

Page 10459

1 MR. GUY-SMITH: That's true.

2 JUDGE ORIE: Then P864 is admitted into evidence.

3 MR. GUY-SMITH: And I --

4 JUDGE ORIE: Yes, P865 is the next one.

5 MR. GUY-SMITH: I don't want to be in a position where I'm arguing

6 after you've ruled which I've done a couple times. I don't want to do

7 that too many times more. But I would note that -- that this particular

8 annex is -- is, I think, a good example of much of the problem that exists

9 in a fair number of the documents, independent of whether it was used for

10 cross-examination, a fair number of the documents that are being sought to

11 be introduced in the particular form which deal with information which has

12 been compiled by Serbian authorities where we have not had the opportunity

13 to engage in cross-examination, where there are serious questions

14 concerning their provenance, where there is questions concerning their

15 reliability, and where there are opinions drawn with regard to the acts

16 and conducts of the accused. So these documents are replete with so many

17 difficulties, that I just want to make that part of where I put my marker

18 down.

19 And I'm going to stop now so that the French can catch up.

20 JUDGE ORIE: Mr. Emmerson.

21 MR. EMMERSON: I was going to move on to -- to annex 11. I don't

22 know whether it --


24 MR. EMMERSON: Any further submissions are required in respect to

25 annex 10.

Page 10460

1 JUDGE ORIE: Well, I'd like to make one observation here. Of

2 course, the Chamber is aware of evidence which are sometimes compilations

3 of other sources, evidence which was introduced by both Prosecution and

4 Defence. The Chamber is aware of the problems related to such evidence.

5 Mr. Emmerson.

6 MR. EMMERSON: P865 was annex 11. This requires a little detailed

7 thought.

8 Annex 11 to Mr. Zlatkovic's statement was one of those interviews

9 conducted by the MUP with persons in custody. In this instance, somebody

10 by the name of Musa Zaceraj [phoen].

11 The Defence objected to the introduction of that annex to the 92

12 ter statement and the corresponding passage in the 92 ter statement

13 itself, which was the eleventh bullet point in paragraph 13 of

14 Mr. Zlatkovic's 92 ter statement, that is, page 11 of the 92 ter

15 statement.

16 By e-mail dated and timed 11.56 p.m. on the 14th of July,

17 Mr. Dutertre agreed to remove the relevant passage in the statement and

18 annex 11. That is the position so far as annex 11 is concerned.

19 We maintain our objection for all of the reasons that have been

20 advanced in relation to the annexes to (redacted) statement and the

21 annexes to the statement of Mr. Stijovic.

22 For the sake of completeness, I should indicate that in relation

23 to annex 11 of Mr. Zlatkovic's 92 ter statement where the Prosecution

24 agreed to remove it, they nonetheless sought to introduce the same

25 document as one of those appended at annex 7 to the statement of

Page 10461

1 (redacted)

2 (redacted)

3 MR. EMMERSON: I do. I do apologise. It's my error.

4 [Defence counsel confer]

5 JUDGE ORIE: Please proceed.

6 MR. EMMERSON: So if I'm -- if I may reiterate. The statement

7 that was annex 11 to the 92 ter of Mr. Zlatkovic is one of the statements

8 at annex 7 to the 92 ter statement of Witness 69, and that is -- I'm

9 trying to find the most convenient way to refer to it. It's ERN range

10 U0168304 to 5 amongst the documents at annex 7 to Witness 69's 92 ter in

11 the form in which those documents have been renumbered.

12 So --

13 JUDGE ORIE: One second, please.

14 [Trial Chamber and registrar confer]

15 MR. EMMERSON: So --

16 JUDGE ORIE: If you'd give me a second to ...

17 MR. EMMERSON: Yes. I think the e-mail in question was copied to

18 the Trial Chamber.

19 JUDGE ORIE: My attention was distracted for a moment,

20 Mr. Emmerson, so therefore I reread the relevant portion of the

21 transcript.

22 Mr. Emmerson, as far as Witness 69 is concerned, it might be that

23 matters, especially in view of very recent filings, are not yet at a level

24 of being dealt with completely today. I think we received -- we received

25 filings only yesterday, again, on Witness 69, quite large submissions.

Page 10462

1 Therefore, it might be that we would not completely deal with them,

2 because there's another matter that is the restructuring of all of these

3 exhibits, and we have to put that on our desk in such a way that we - at

4 least the Chamber - still knows what we are talking about.

5 MR. EMMERSON: Yes. I --

6 JUDGE ORIE: So therefore, as far as reference to Witness 69 are

7 concerned, it might be that we will not resolve that matter or not fully

8 discuss even that matter today.


10 JUDGE ORIE: Now it is -- your objections against annex 11 to the

11 Zlatkovic 92 ter statement is clear now.


13 JUDGE ORIE: We -- one of the remaining issues is then D153. Is

14 there any objection, Mr. Dutertre, against D153?

15 MR. DUTERTRE: [Interpretation] No objection, Your Honour.

16 JUDGE ORIE: Then D153 is admitted into evidence, and the Chamber

17 still will have to consider P865, which is a short statement given by

18 someone in detention and it was a statement -- I don't see the date.

19 MR. EMMERSON: It's --

20 JUDGE ORIE: -- immediately, but it's clear -- it's a relatively

21 short statement.

22 MR. EMMERSON: Yes. I hope I've sufficiently explained myself in

23 relation to that. It is -- it is an identical document to one of those

24 which is annexed to Witness 69's statement.


Page 10463

1 MR. EMMERSON: But this -- on this occasion, the Prosecution

2 agreed that it should not be admitted. And that is --

3 JUDGE ORIE: Mr. Dutertre, I haven't checked what e-mails there

4 have been there, but --

5 MR. EMMERSON: I can see that it is --

6 JUDGE ORIE: Mr. Dutertre, do you insist on tendering P865?

7 Of course, we would have to go further into whether there was an

8 agreement reached on this.

9 MR. RE: Yes, Your Honour, we do insist on tendering this. This

10 document is very much in the -- a very similar category to the documents

11 attached to the statements of Mr. Stijovic and all the other witnesses who

12 have testified of receiving or -- receiving such statements or

13 interviewing various citizens of Kosovo who provided them with evidence

14 about the activities of the KLA and Mr. Haradinaj at the relevant period.

15 JUDGE ORIE: Yes. But that's an entirely different matter.

16 Mr. Emmerson tells us that you, Mr. Dutertre, agreed to withdraw this one.

17 Is that -- if that's the case --

18 MR. EMMERSON: If it would assist Mr. Dutertre if I just remind

19 him of the reference --

20 MR. DUTERTRE: [Interpretation] I have this absolutely in mind. It

21 only has to do with Mr. Zlatkovic and has nothing to do with Witness 69.

22 Therefore, the reasons for which the e-mail was sent for witness Zlatkovic

23 do not necessarily apply to Witness 69.

24 JUDGE ORIE: Yes. But then P865 was the document that was

25 introduced through Mr. Zlatkovic and not through any other witness. If at

Page 10464

1 any other moment the same document would have been tendered through

2 another witness, we might have to consider, for example, what that witness

3 knew about the document. Admission could not be separated in all respects

4 from the witness through which it was introduced.

5 So simply the question is: P865, is that a document where you

6 committed yourself to withdraw that as a document to be introduced, to be

7 tendered into evidence through witness Zlatkovic?

8 MR. DUTERTRE: [Interpretation] Yes, Your Honour.

9 JUDGE ORIE: Then I suggest to you that you withdraw P865 and that

10 that number will be vacated. And then we might have another debate on the

11 same document introduced through another witness.

12 Mr. Registrar, P865 --

13 I take it, Mr. Dutertre, that you'll follow my suggestion. Yes.

14 -- is vacated.

15 It is time for a break.

16 We adjourn and we'll resume at 11.00.

17 --- Recess taken at 10.35 a.m.

18 --- On resuming at 11.08 a.m.

19 JUDGE ORIE: Before we continue, the Chamber will give a few

20 decisions on those exhibits that were contested. The Chamber adds to this

21 that admitting a document into evidence does not necessarily mean that the

22 Chamber thinks that all the evidence in such documents would be fully

23 tested. Sometimes it may not be possible to test that evidence and it may

24 have very limited probative value, but the evidence is considered in its

25 entirety.

Page 10465

1 Similarly, sometimes evidence about facts is intermingled with

2 opinion. Sometimes opinion or inferences, you would not exclude an

3 ordinary citizen to make sometimes, however, of a different nature.

4 Nevertheless, the Chamber is not inclined to go line by line and say,

5 These three words are out. That, of course, might be different if it

6 comes to the acts and the conduct of the accused, but sometimes the

7 Chamber will just admit into evidence in full awareness that there are

8 elements of opinion, sometimes even elements of inadmissible opinion in

9 there.

10 D89 is admitted into evidence.

11 P910 is admitted into evidence.

12 P367 is admitted into evidence in its entirety, including

13 paragraph 54.

14 Then the Chamber would like to hear further from the Defence on

15 the meteorological data. Mr. Emmerson, at least to the extent you'd like

16 to add what you have already said about this meteorological report of

17 three pages.

18 MR. EMMERSON: Yes, we object to the admission of that document.

19 It's tendered --

20 JUDGE ORIE: For the reasons you gave earlier.

21 MR. EMMERSON: For the reasons that we gave, I think at the time

22 that the issue was raised.


24 MR. EMMERSON: It was tendered through a witness who was not in a

25 position to attest to its reliability and there's no means of testing it.

Page 10466


2 MR. GUY-SMITH: I join his objections and also indicate that we

3 have no information concerning his provenance.

4 JUDGE ORIE: Yes. Mr. Harvey.

5 MR. HARVEY: I join.


7 P909 is not admitted into evidence and therefore the status should

8 change in MNA.

9 Then I think I've forgotten to ask the parties to comment on P911.

10 That was an oversight. Also pictures.

11 Witness 64 has described in paragraph 39, under A of his 92 ter

12 statement.

13 Any objections?


15 JUDGE ORIE: Then P911, if I may assume that other Defence counsel

16 join Mr. Emmerson, is admitted into evidence.

17 I think these were the pending MFIs.

18 Before we continue, we have the issue of witnesses to be called

19 next week.

20 Mr. Re, for next week a videolink has been scheduled from Pristina

21 on Monday. Other videolinks have been scheduled for Tuesday, Wednesday,

22 Thursday. To the extent that you are able to fit in in that schedule,

23 because it's highly uncertain how much time these videolinks will take, if

24 you are able to fit the two witnesses that were scheduled to be called

25 this week but which couldn't be done, if you manage to fit them in the

Page 10467

1 schedule of next week, the Chamber will allow you to do so.

2 Then we have finally the evidence of Mr. Versonnen. The Defence

3 has asked the full period of time under the Rules to respond to a 92

4 quater application. The Chamber is aware that the relevance of

5 Mr. Versonnen's evidence is directly linked to the decision the Chamber

6 will take on this 92 quater motion. At the same time, the Chamber does

7 not consider it prejudicial to the Defence if Mr. Versonnen would testify

8 and if finally the 92 quater decision would be negative for the

9 Prosecution, it will not assist the Chamber much but it would not harm

10 either.

11 So therefore, Mr. Versonnen -- you can call Mr. Versonnen. But,

12 again, within the time frame I just mentioned.

13 Then we slowly move on on our list. I think we are at item 10,

14 D188, Branko Gajic.

15 MR. EMMERSON: Yes. That is an excerpt, I believe I'm correct in

16 saying, from the transcript of a Witness K32 who testified for the

17 Prosecution in the Milosevic trial --


19 MR. EMMERSON: -- concerning the conduct of the 549th Brigade and

20 General Delic or Colonel Delic in particular. We do not press for the

21 admission of the portion of the transcript. The relevant passages were

22 put to the witness in cross-examination.

23 JUDGE ORIE: Mr. Re, it's still tendered, but I take it that you

24 do not oppose the attitude taken. I mean, Mr. Emmerson says "we do not

25 press admission." I take it that --

Page 10468

1 MR. RE: We don't oppose him withdrawing his application to tender

2 it, no.

3 JUDGE ORIE: Then, Mr. Emmerson, I take it that then we'll not

4 have to take a decision that it's not admitted but it's vacated, because

5 it's withdrawn.

6 D188 is vacated.

7 We move on --

8 MR. RE: Your Honour, would it be possible to deal with the matter

9 Mr. Di Fazio was going to deal with? That was D64 and 65. It was simply

10 that the weight which could be given to --

11 JUDGE ORIE: Yes. If Mr. Di Fazio would like address the Chamber.

12 Let me just have a look again what those were.

13 Mr. Di Fazio.

14 MR. DI FAZIO: It's a very simple submission. It's that basically

15 very little weight ought to be attached to -- to the -- to the documents

16 themselves. Mr. Emmerson said this morning that the only purpose of

17 having the documents there was to evaluate the responses of Mr. Pappas

18 when they were put to him in cross-examination. Well, from -- from

19 memory, Mr. Pappas was clear about his version of events. Basically

20 they -- they concern events that took place as he and -- I think we need a

21 redaction, if Your Honours please. Would Your Honours just give me a

22 moment.

23 [Prosecution counsel confer]

24 MR. DI FAZIO: I just can't recall off the top of my head if the

25 witness testified in open session or -- or -- or ...

Page 10469

1 JUDGE ORIE: He was not a protected witness.

2 MR. DI FAZIO: No. No. No.

3 JUDGE ORIE: But whether the relevant portion was in any way

4 confidential is --

5 MR. DI FAZIO: No. I think I've been overly cautious. I'll

6 continue.

7 He was describing one of his trips into -- through Irzniq and the

8 encounter with Mr. Balaj and his black jeep, and it was those events --

9 and he -- being forced into Glodjane with some bombing and them being kept

10 there for a certain period of time and an encounter with the commander,

11 and then his leaving that very day. And that's what these extracts

12 basically concern.

13 And from -- Mr. Emmerson put those -- these extracts that are

14 contained in D61 [sic] and 65 to the witness and he held his story from --

15 he didn't -- he was unshaken in his cross-examination. I don't think that

16 -- in any event that it's being put to the Trial Chamber that these

17 documents go in any way to undermine his account of events. Indeed, the

18 only purpose of having the documents there is in order to be in a position

19 to evaluate the responses of -- of Mr. Pappas.

20 If they assist you to evaluate the response of Mr. Pappas, all --

21 all well and good. But by themselves they have little weight as an

22 account of events that happened on that day on that trip.

23 JUDGE ORIE: I take it that Mr. Emmerson will draw our attention

24 to the usefulness of these documents when evaluating the evidence. And if

25 he doesn't do so, then the Chamber has to deal with it itself.

Page 10470

1 Thank you, Mr. Di Fazio.

2 Then we move on to number -- no, D188 is now vacated.

3 We have now ...

4 Yes. D163 and D164.

5 Mr. Emmerson, at that time you said that you'd like to have them

6 and you would come back to the issue of -- there was something about

7 dates, 13th or 14th --


9 JUDGE ORIE: -- of September. You said these were two the same

10 documents but with different dates.

11 I'm a bit puzzled there because, of course, they are similar

12 documents but not the same documents.

13 MR. EMMERSON: Yes. The position is -- the position is this:

14 D163 is a statement of Bekim Kalamashi, and D164 is a statement of

15 Zenelj Alija. The text of the statements is identical to the text of

16 statements that are already in evidence. And the purpose of having these

17 statements marked for identification is because, as Your Honour will

18 recall, there have been a number of anomalies identified in respect to the

19 preparation of some of these documents. For example, the matter that was

20 explored in the cross-examination of Mr. Zlatkovic which ended with a

21 discussion about typewriting errors and so forth, as well as a number of

22 date anomalies. And the significance of these two documents is that they

23 are the same documents but bear a -- an altered date, both of them the

24 same alteration but ten days apart. And since the suggestion of the

25 Defence that the inference to be drawn from these statements taken as a

Page 10471

1 whole is that far from being contemporaneously recorded interviews, they

2 were scripts of words to be put into the mouth of detainees and forced --

3 so that they would be forced to sign. And I won't traverse all of the

4 other reasons why we say that.

5 JUDGE ORIE: No. That's clear --

6 MR. EMMERSON: But that is -- this is to the complete the picture

7 in respect of those.

8 JUDGE ORIE: At the time you requested them to be marked for

9 identification, only you did not tender them yet.


11 JUDGE ORIE: The question now is: Do you tender them?

12 MR. EMMERSON: I do.

13 JUDGE ORIE: Yes. Is there any objection, Mr. -- Mr. Re?

14 [Prosecution counsel confer]

15 JUDGE ORIE: Mr. Re, is there any objection against D163 and 164?

16 These are MUP statements by Bekim Kalamashi and Zenelj Alija and the text

17 shows striking similarities with other statements given by them but there

18 are also differences.

19 MR. RE: Look, I'm in the Trial Chamber's hands. If the Trial

20 Chamber think it assists your evaluation; if not ... I mean, I'm taking a

21 fairly neutral view on this one.

22 [Trial Chamber confers]

23 JUDGE ORIE: D163 and 164 are admitted into evidence.

24 We now find on the agenda Witness 69. I suggest to the parties

25 that at this moment we do not deal with them. We might not be --

Page 10472

1 sufficiently be prepared.

2 Mr. Guy-Smith, isn't it true that filings have been made very

3 recently on --


5 JUDGE ORIE: -- these matters?

6 Yes, the Trial Chamber has not fully digested those. And there

7 also might be problems as far as the rearrangement of the annexes is

8 concerned.

9 The Chamber, however, would invite the parties to -- you are

10 invited to present to the Chamber in a well-organised way - and that might

11 need some cooperation between the parties - the positions taken in

12 relation to these annexes in their rearranged format, because otherwise we

13 really get lost.

14 When do the parties think they could present this? Of course, the

15 Chamber would very much like to know exactly where objections are, where

16 there are no objections.

17 I think, Mr. Emmerson, you did already quite some work in that

18 respect.


20 JUDGE ORIE: But I think it was only the Haradinaj Defence who

21 presented such things and it was only after, I think, we had received that

22 that we received additional submissions by Mr. Guy-Smith.

23 MR. EMMERSON: Yes. I think -- I think the substance of our

24 objections the Trial Chamber is aware of, because they were the subject of

25 a motion filed at a time when the Prosecution exhibits were disorganised.

Page 10473

1 The Prosecution then reorganised its exhibits after the witness

2 had been brought to court. And the Trial Chamber has, I hope, a key

3 provided by the Haradinaj Defence team which links the substantive

4 objections in the original system of objections to the annex number, which

5 is now part of the Prosecution's reordered exhibit list, together with -

6 and many of them are component elements of annex 7 - the ERN numbers and

7 the page of the -- I'm sorry, the page of the 65 ter number by which these

8 matter can be cross-referred.

9 So I'm not sure if there's any further assistance that we're able

10 to offer the Trial Chamber in that regard, but if there is, it would -- it

11 would be helpful to know what -- what specific further assistance the

12 Trial Chamber would request.

13 JUDGE ORIE: Mr. Emmerson, we have received that, and it is

14 well-organised. But, of course, it's only Haradinaj Defence.

15 MR. GUY-SMITH: If I -- if I might, because I think this would be

16 of some assistance. The annex which is attached to our submission is in

17 large measure precisely the same as the annex that was attached to the

18 Haradinaj submission but for one difference, where there was an ERN number

19 submitted by the Haradinaj Defence and I believe that we found that there

20 had been an MFI number actually given to one of those ERN numbers. And

21 that is the only difference as between the two.

22 Our submissions are with regard to the exact same annexes and we

23 have the exact same objections. So to the extent the Chamber can be

24 guided with regard to what the objections are, there are no new objections

25 that exist. We are -- we stand shoulder to shoulder with regard to the

Page 10474

1 objections made as indicated in the chart that's been put forth. And I

2 hope that is of some help.

3 JUDGE ORIE: Mr. Harvey.

4 MR. HARVEY: Your Honours, we are in the process of preparing a

5 joinder with our colleagues in respect of -- of this motion. We have

6 reviewed with care the annexes that they have provided. We will not be

7 muddying the waters with a different form of annex. We -- we will be

8 adopting in their entirety the arguments that have been put -- put forward

9 by our colleagues.

10 JUDGE ORIE: Yes. So therefore Mr. Emmerson had already provided

11 the Chamber with approximately what we were seeking. We did not find

12 time, Mr. Guy-Smith, to digest your recent submissions -- submission, I

13 would say, that came in, I think, only yesterday evening --

14 MR. GUY-SMITH: I think it came in about a few minutes before the

15 turn of the day.

16 JUDGE ORIE: Yes. Well, that's ...

17 And since we had other matters to discuss during our -- our early

18 morning meeting, we just didn't find time. We'll look at it.

19 We will inform the parties, also after having received

20 Mr. Harvey's joinder -- we will look at the materials as they are at that

21 moment presented to the Chamber. We'll then perhaps also give an

22 opportunity to Mr. Re to briefly comment on them. It depends. We'll

23 first have to look at it whether we give an additional opportunity to

24 Mr. Re.

25 So this is not a promise, Mr. Re. You have tendered these

Page 10475

1 documents. We then have heard the objections. We'll see whether there's

2 any need for the Chamber to -- to further seek your view on the matter.

3 If the format in which the objections are now presented would

4 still need -- would still be in need of -- of further explanations or

5 additions or whatever, the Chamber would then inform the parties but in an

6 informal way through our legal staff.

7 And that's where we leave it for this moment.

8 MR. GUY-SMITH: And if it is of some help, it's in the schedule

9 annex 9 which has an MFI number of P1183. And we have the same ERN

10 number -- ERN range in both documents, which is U0168335 through 8340.

11 JUDGE ORIE: Then we move on to number 13 of the agenda, which is

12 about Witness 17. We have a few numbers there.

13 The first one is the 92 ter statement of Witness 17. Let me just

14 try to bring back into your memory that on the 14th of September the

15 Prosecution has filed a motion requesting to admit a redacted version of

16 the 92 ter statement. I think the redactions were a result of one of the

17 out-of-office-hours meetings we sometimes have.

18 Witness 17 then started to testify. The redactions, with one tiny

19 exception, the redactions proposed by the Prosecution corresponds to what

20 we at that time put on paper as far as instructions or guidance, if you

21 want, the Chamber had given to the parties during that meeting.

22 The Defence then indicated that it would like to respond to the

23 14th of September motion, but I think we did not have a -- did we receive

24 a response?

25 Mr. Emmerson.

Page 10476

1 MR. EMMERSON: Yes, Your Honour should have received a response.

2 JUDGE ORIE: Oh, yes, on the 7th of November. Not at that time

3 but recently.


5 JUDGE ORIE: Yes, I was dealing with history at this moment and

6 not with this week's events.

7 I do understand that this week, on the 7th of November, we

8 understood that the parties have agreed to redact paragraph 73 and to

9 de-redact paragraph 81.

10 Is that correctly understood?

11 MR. EMMERSON: That -- that is correctly understood.

12 JUDGE ORIE: Yes. Then the Chamber would like to deal with it in

13 the following way: That the statement is ready for admission, the

14 statement with all the redactions proposed by the Prosecution at that

15 time. In addition, a redaction of the following sentence in paragraph 59,

16 which was the one exception where the Chamber gave guidance to the

17 Prosecution which was not reflected in the 92 ter statement as submitted,

18 the sentence being, and I quote: "I believe Din Krasniqi also had direct

19 contact with Idriz Balaj and Faton Mehmeti." So that redaction then

20 should be added to the ones already presented.

21 Further, that the whole of paragraph 73 would be redacted, and

22 that paragraph 81 would be de-redacted.

23 That, in the view of the Chamber, is what would -- should be the

24 result of filing, meeting, further submissions and agreement between the

25 parties.

Page 10477


2 JUDGE ORIE: Anything to be added?

3 MR. EMMERSON: Well, I'm not entirely sure whether the Trial

4 Chamber intends that to have taken into account the filing as to the

5 remaining issues in dispute.

6 The filing that the Haradinaj team put in yesterday, which has

7 reflected a long-standing dispute between the parties since the time that

8 the witness testified, and it was notified to the Prosecution immediately

9 after he testified, identifies a number of passages in the 92 ter

10 statement in respect of which the Trial Chamber indicated in the meeting

11 before the witness testified that the Prosecution would be required to

12 lead oral evidence in support, and the Prosecution then did not do so.

13 And so those passages are reflected in the motion that was filed

14 yesterday.

15 JUDGE ORIE: Yes. I -- I think, as a matter of fact, what the

16 Chamber said is that if no oral evidence would be led, that the evidence

17 in the 92 ter statement in those portions would not assist the Chamber or

18 would barely assist the Chamber. Whether we would now have to analyse

19 exactly what questions were put to the witness, to what extent they were

20 sufficient to give further weight to those portions of the 92 ter

21 statement, that is a matter I will consider with my colleagues.

22 MR. EMMERSON: Yes. The only reason I -- I press for

23 consideration of the -- of the detail of the motion as it was filed

24 yesterday is that, obviously, if the Prosecution put the witness into the

25 witness box on the basis that those passages will achieve no probative

Page 10478

1 value without clarification and explanation and then do not do so, then

2 that is a position that the Defence assume at the end of evidence in chief

3 and upon the basis of which the Defence plan cross-examination. And so

4 our essential position is that if the Prosecution have chosen in those

5 circumstances not to call evidence to support assertions that are general

6 and which have been identified as such, then in -- in those circumstances,

7 they ought not to -- to remain on the record.

8 There are one or two other passages where the Prosecution did seek

9 evidence to elicit support, but then the testimony of the witness turned

10 out to be to the opposite effect. And I -- Your Honour may remember one

11 matter that was the subject of discussion in the meeting, which was the

12 receipt of some letters. And I had postulated at the meeting that without

13 any indication of whether these were allegations of crime or traffic

14 violations, they were of no probative value. And the Prosecution then

15 sought to elicit evidence in support and the witness's testimony was that

16 they contained no allegations of crimes.


18 MR. EMMERSON: So it's that type of material which is considered

19 in the motion, together with the annexes, that remain in dispute.

20 JUDGE ORIE: Thank you for these further clarifications.

21 Yes. Since the response -- the response came in yesterday and

22 since some other matters came in yesterday as well, we'll further consider

23 the matter. We need some time to discuss it among ourselves as well.

24 Then we have the next item, P895, extract of a book.

25 Mr. Emmerson.

Page 10479

1 MR. EMMERSON: That is also the subject of filings and is the

2 subject of the written pleading that was put in to the Trial Chamber

3 yesterday.

4 Your Honour may remember it was an extract from a book by

5 Maxhun Smajl.

6 JUDGE ORIE: Mr. Smajl, yes.

7 MR. EMMERSON: The witness gave certain evidence about one very

8 small issue, on the back of which the Prosecution seeks to introduce the

9 whole of Mr. Smajl's book covering the relevant period in the indictment.

10 Quite for what purpose is difficult to -- to identify, but it is objected

11 to and resisted. And so the arguments in support are set out in paragraph

12 9 of the -- of the response submitted in writing yesterday.

13 JUDGE ORIE: Mr. Re.

14 MR. RE: Well, the Prosecution's response is the book is -- is

15 highly relevant to the matters for determination. It's -- the excerpt is

16 from a series of contemporaneously created diary entries. So the

17 reliability and authenticity and credibility is given from the fact that

18 they were spontaneously created at the relevant time during the armed

19 conflict which is the subject of determination here. They also relate

20 to -- they relate to the period May, June, and July 1998.

21 The portion of which we're most concerned is the first two pages,

22 which relates to Jablanica, which is highly relevant to Witness 17's Rule

23 92 ter statement and it's relevant in that it exactly corroborates what

24 Mr. Smajl told the witness, that is, the existence of a water-filled

25 cellar in which he saw two prisoners, one of whom was the late

Page 10480

1 Skender Kuqi.

2 Now, there are other -- there are other parts in that diary which

3 are relevant, including the part about witness Fadil Fazliu. And the

4 person who wrote the diary was in the position to see many of the events

5 described in the indictment. He saw the prison at Jablanica himself. He

6 attended the swearing-in ceremony in Barane on the 20th of July, 1998.

7 His descriptions of those events is relevant to assessing the veracity of

8 the hearsay information appearing in Witness 17's Rule 92 ter statement

9 and in his testimony and the entire excerpt provides the context which the

10 Trial Chamber needs to assess the credibility of the person writing the

11 diary and the veracity of what's contained in it.

12 So in our submission, you've got to look at the entire document in

13 its context to see how it relates to the events, the subject of the

14 indictment and to provide some very relevant, valuable and incriminating

15 evidence which is corroborated throughout -- has been corroborated

16 throughout the trial.

17 JUDGE ORIE: Mr. Emmerson.

18 MR. EMMERSON: I don't wish, if I may, to repeat that the

19 arguments that are set out in writing. We would simply refer the Trial

20 Chamber to paragraph 9 of the -- of the written submission.

21 This is not a contemporaneous diary. It's a subsequently written

22 account by this individual of recollections. It is plainly hearsay. It

23 plainly goes to the acts and conducts, in certain passages, of the

24 accused. It is material in which no weight, in our submission, could

25 properly attach. And if the Prosecution thought Mr. Smajl had relevant

Page 10481

1 evidence to give, they would have no doubt have called him.

2 MR. GUY-SMITH: Yes. I would refer the Chamber to our paragraphs,

3 I believe, 29 -- 29 through 33 of our filing.

4 JUDGE ORIE: Mr. Harvey.

5 MR. HARVEY: Your Honour, I also rely on the matters set forth in

6 the filing that Mr. Guy-Smith just referred to.

7 In addition to which, it is totally misleading, and I don't -- I'm

8 sure that Mr. Re hasn't said it deliberately. Obviously, he hasn't read

9 carefully enough the passage from the book. There is absolutely no

10 suggestion that this Mr. Smajl saw Skender Kuqi in the water-filled

11 cellar. It is not borne out at all by that.

12 Mr. -- this book does -- is not corroborated by the Witness 17's

13 observations. In fact, Witness 17 said that he did go to the barracks but

14 he did not examine any of these locations.

15 The document is described as relating to Smajl's threat of

16 liquidation by Lahi Brahimi. I quote the document description that

17 appears in the exhibit list. There is no threat ever found in that book.

18 And whatever basis for it seems to have emerged purely from the fantasy of

19 Witness 17. It's simply not contained there.

20 All in all, this is a witness who should have been produced so

21 that the Trial Chamber could assess whether anything that he had written

22 in his book was of any validity at all. But it simply cannot be

23 corroborated by Witness 17. So I -- I object to the admission of the book

24 in its entirety.

25 MR. RE: I -- I correct where I said it's -- it's clear he said

Page 10482

1 he saw Skender Kuqi. What he actually said was he -- he -- "They told me

2 to squat and look into the cellar, which I did. Sitting down I saw two

3 people in the corner standing in the water. It was a distressing sight,

4 even though I did not know who those people were."

5 He then goes on to say that "Skender Kuqi and a man from Polac,

6 Nugat Sati [phoen] had experienced the same fate," et cetera. "Had been

7 subject to torture, and ended up in the water-filled cellar." That's the

8 connection.

9 The connection is he saw people in that prison in the water

10 himself and he also was aware that Skender Kuqi had suffered the same fate

11 and that's corroborated by the evidence of witnesses who saw Skender Kuqi

12 in that cellar in the same time period.

13 JUDGE ORIE: Is the awareness sourced in any way?

14 MR. RE: Yes. It's the -- it's the -- it's the effect of many

15 people knowing about it. Some people seeing it, other people describing

16 it to people, and it being reported. It's almost becoming an instance of

17 common knowledge in the area that Skender Kuqi met that fate and this

18 fellow, Smajl, saw people suffering the same fate in the cellar as that

19 which Mr. Skender Kuqi met. So it has corroborative value.

20 MR. HARVEY: Your Honour, I'd be very grateful if Mr. Re could

21 refer us to one point in the evidence that has so far been received by

22 this Tribunal of Skender Kuqi ever having been seen in a water-filled

23 cellar. There is no such evidence before the Tribunal.

24 JUDGE ORIE: Mr. Re, this seems to be an invitation.

25 MR. RE: Jablanica. In the prison where this --

Page 10483

1 JUDGE ORIE: In the prison, yes.

2 MR. RE: -- where the water-filled cellar was and the same area.


4 [Trial Chamber confers]

5 JUDGE ORIE: The Chamber will rule on the matter right away.

6 The 92 ter statement in paragraphs 68 and 69 deal with the book.

7 The witness there describes discussions he had with the author of the

8 book.

9 The 92 ter statement is -- in this respect seems to be the better

10 evidence. And if the Prosecution would like to have parts of the book

11 admitted into evidence which are not covered by the testimony of the 92

12 ter statement, then you would have to identify those portions precisely,

13 Mr. Re, and explain why they are relevant and of probative value.

14 So therefore, P895 now gets the status of marked, not admitted.

15 But if there are any specific portions, Mr. Re, you know that you could

16 address the Chamber on that.

17 We now move to P896, P897, P898, and P902. These are all

18 documents produced by a witness who did not yet appear before this

19 Chamber.

20 Mr. Emmerson.

21 MR. EMMERSON: Yes, exactly so. And they are addressed in

22 paragraph 10 in writing of the motion that we filed yesterday.

23 We would respectfully submit that these are, as you say, documents

24 purportedly produced but not identified by a witness whose name I won't

25 refer to in open session but who is the subject of an unfulfilled subpoena

Page 10484

1 application and, I believe, at least consideration of contempt

2 proceedings.

3 The witness statement from that witness contradicts the content of

4 these documents in a number of respects, and the Trial Chamber may

5 remember that I cross-examined Witness 17 about a passage from the witness

6 statement of the witness concerned in relation to his investigation into

7 the death of Sanije Balaj, which contained an account utterly at variance

8 with the accounts recorded in the exhibits that the Trial Chamber has just

9 identified.

10 And we respectfully submit that unless or until that witness is

11 called to testify, these documents should not be admitted.

12 [Trial Chamber confers]

13 JUDGE ORIE: Mr. Re, is there anything you'd like to add? If not,

14 then the Chamber will consider the matter during the next break.

15 MR. RE: There's nothing I can add at the moment. Could I just

16 ask that this matter be deferred today, consideration of this be

17 conferred -- what's the word I used? Deferred.

18 JUDGE ORIE: We'll include that in our considerations.

19 MR. RE: Thank you.

20 JUDGE ORIE: Then P906 is a pseudonym sheet in relation to Witness

21 17 which is admitted into evidence in the absence of any response to what

22 I just said.

23 Then D156, D157, and D158, Mr. Re, are military documents and the

24 Chamber would like to know whether you have any objections against

25 admission.

Page 10485

1 MR. RE: These are the Rrustem Tetaj ones, I think, aren't they?

2 They have his name on them. Sorry, Rrustem Berisha.

3 JUDGE ORIE: No. They --

4 MR. EMMERSON: I can assist to this extent. The Trial Chamber

5 will find reference to this in paragraph 11 of the written motion filed

6 yesterday. These were documents that were provided by Witness 17 to the

7 Prosecution in electronic form and upon which he was cross-examined. They

8 are contemporary orders, some of which bear the name of the person for who

9 he was --

10 MR. RE: I don't object. There's no objection.

11 MR. EMMERSON: Thank you.

12 JUDGE ORIE: No objection against either of the three. Yes.

13 Then D156, D157, and D158 are admitted into evidence.

14 Then we move on. We now come to Witness 56.

15 MR. EMMERSON: I think, if I may say something -- just before Your

16 Honour moves on, I think there is an additional document under item 13.

17 JUDGE ORIE: Oh, yes, I think -- no, no.

18 MR. EMMERSON: D161.

19 JUDGE ORIE: Let me just check. I must have missed something.

20 [Trial Chamber confers]

21 MR. EMMERSON: Can I remind the Trial Chamber of what this is?

22 It's on the list that was provided by --

23 JUDGE ORIE: Yes, I've seen that. I'm just trying to find my

24 notes on this matter at this moment.

25 MR. EMMERSON: Can I -- can I assist to this extent. There's a --

Page 10486

1 there's a technical problem in relation to this document, because the

2 e-court system - and I think the registrar may be able to confirm this -

3 finds nothing under D161.

4 JUDGE ORIE: One second, please.

5 [Trial Chamber and legal officer confer]

6 JUDGE ORIE: D161, could we ask Mr. Registrar whether this item is

7 known to him and which party tendered that. If he can't identify it, D161

8 will be identified as the mysterious guest in this courtroom.

9 MR. EMMERSON: Yes, I can identify it whenever --


11 MR. EMMERSON: -- the moment is convenient.

12 D161 should have been Defence document 1D56-0019, and it was the

13 subject of cross-examination of Witness 17 at transcript page 7747.

14 And just to remind the Trial Chamber, it was a -- a document again

15 relating to the appointment on the 20th of August of a new general -- a

16 new staff in the Dukagjin area under the command of Tahir Zemaj. And the

17 significance of the document was that it was in all respects identical to

18 a document that had been produced by Witness 17 except that Witness 17 was

19 not on it as the Chief of Staff. In other words, in the document he

20 produced of that date, he was named as Chief of Staff. But in the

21 document which is 1D61, 1D56-0019, which was in the cross-examination

22 bundle, somebody else was named as Chief of Staff. So that is the

23 document that it relates to.

24 JUDGE ORIE: Yes. Is it uploaded in the e-court system? Because

25 that seems to be a problem.

Page 10487

1 MR. EMMERSON: Well, there's obviously been a technical error in

2 uploading it.

3 Yes, it is -- it is uploaded it into e-court, but -- well, no --

4 but it hasn't been linked within the system.

5 JUDGE ORIE: Well, we'll --

6 First of all, Mr. Re, are you familiar with the document? D161.

7 Although it doesn't appear in e-court.

8 Mr. Guy-Smith, if you can assist us.

9 MR. GUY-SMITH: I think that we can be of some assistance. It is

10 referenced on page 8386 of the transcript.

11 JUDGE ORIE: Yes. I think that -- let me just check that.

12 MR. GUY-SMITH: And I think it's --

13 [Trial Chamber and registrar confer]

14 MR. GUY-SMITH: It's identified as 1D54-0019.

15 JUDGE ORIE: The technical problem has been resolved. The

16 mysterious guest is now put in place, that is, in the e-court system under

17 number D161.

18 Mr. Re, any objections against admission?

19 You even find it at this moment displayed in e-court.

20 MR. EMMERSON: I could assist that the witness when cross-examined

21 identified the signature and the authenticity of the document and sought

22 to give an explanation as to why the unsigned version of this that he

23 produced did not include him -- I'm sorry, did include him, whilst this

24 one did not.

25 JUDGE ORIE: Yes. It's the 22nd of August, 1998 communique

Page 10488

1 addressed to the Territorial Defence Staff and signed, this copy, by

2 Tahir Zemaj.

3 MR. RE: No objection.

4 JUDGE ORIE: No objection. Then D161 is not only found but also

5 admitted into evidence.

6 We move on to paragraph 14 of the agenda. Witness 56, the Chamber

7 said that it would give an opportunity to make submissions for either not

8 more than five minutes or make oral -- or make written submissions on the

9 admissibility of Witness 56's evidence in view of -- mainly in view of at

10 least triggered by the problems we had in receiving a solemn declaration

11 from him.

12 Mr. Guy-Smith.

13 MR. GUY-SMITH: Initially, did the Chamber receive the filing that

14 we made yesterday with regard to Witness 56?

15 JUDGE ORIE: That was included in your filing of yesterday?

16 MR. GUY-SMITH: Yes, we -- we made --

17 JUDGE ORIE: The late filing.

18 MR. GUY-SMITH: No, actually that was an earlier filing.

19 JUDGE ORIE: The earlier filing.

20 MR. GUY-SMITH: Yes. We did make a filing yesterday.

21 JUDGE ORIE: So you would say, I don't need the five minutes

22 because I've made written submissions.

23 MR. GUY-SMITH: I don't feel -- I don't want to be greedy but I --

24 I have made a filing. You gave me one or the other of an option, and a

25 filing was made. I think the problems of Witness 56 are well late out in

Page 10489

1 record. I don't see at all how he's going to be of any assistance. And I

2 think in our written filing --

3 JUDGE ORIE: We'll read it and we'll consider the submissions

4 you've made.

5 Mr. Harvey, five minutes or in writing?

6 MR. HARVEY: Your Honour, I would like an opportunity to consider

7 the filing by the Balaj team. My expectation is that I will be joining

8 that and -- rather than wasting the Court's time now.

9 JUDGE ORIE: Yes. The Chamber, however -- five minutes are

10 offered for today. So if you cannot make up your mind, you have to make

11 up your mind today whether or not to join, then, of course, you still have

12 an opportunity to make written submissions. But the five minutes cannot

13 be delayed until a later moment.

14 MR. HARVEY: No, I won't -- no.

15 JUDGE ORIE: Mr. Emmerson.

16 MR. EMMERSON: No, I don't wish to make any oral submissions at

17 this stage.

18 JUDGE ORIE: Don't wish to make any oral submissions.

19 Is it included in any written submissions? No, submissions at

20 all.

21 Then we move on to paragraph 15 of the agenda. The first is P1

22 and P2, which are exhibits introduced through the witness Andjelkovic,

23 diary volumes.

24 P1 and P2 have been replaced by P3 and P4, respectively.

25 Therefore, the former two, P1 and P2, should be vacated. This is, at

Page 10490

1 least, the understanding of the Chamber.

2 We'd like to verify with the parties whether that's their

3 understanding as well.

4 Then -- yes, I -- from your silence, I conclude that it's your

5 understanding as well.

6 P1 and P2 are vacated.

7 We move on to D137 and D139, which were tendered through the

8 witness Bajcetic.

9 No, no, no.

10 Mr. Emmerson.

11 MR. EMMERSON: So far as D135 is concerned, that is, the same

12 excerpt -- I'm sorry.

13 [Defence counsel confer]

14 MR. EMMERSON: I'm sorry.

15 JUDGE ORIE: No, D137 and -- is a witness statement dated the 6th

16 of November, 2006.


18 JUDGE ORIE: I don't know whether there are any protective

19 measures or whether there would be any need for protection. That's one.

20 And 138 is a witness statement by that same person dated the 9th

21 of May, 2006.


23 JUDGE ORIE: And 1 -- yes, I should say 137, 138, and 139. It's

24 not two but it's three documents marked for identification.

25 The last one, 139, being a Defence witness statement dated the

Page 10491

1 23rd of November, 2006.

2 MR. EMMERSON: Yes. Well, given the rulings that the Trial

3 Chamber have already made in respect of statements prepared with the

4 proceedings in contemplation, I anticipate that the Trial Chamber's ruling

5 would be to not admit those documents.

6 Might I simply ask the Trial Chamber to give such a ruling.

7 JUDGE ORIE: Yes. You'd rather not withdraw them but --

8 MR. EMMERSON: Consistent with the approach that's been taken.


10 MR. EMMERSON: We'd simply invite the Trial Chamber to extend the

11 ruling that's already been made.

12 JUDGE ORIE: Yes. So you still -- you still tender them. You'd

13 like a ruling to have Chamber.

14 MR. EMMERSON: We've taken a position in respect of those

15 documents up until now. But the Trial Chamber has made certain rulings --


17 MR. EMMERSON: -- and we recognise that.

18 [Trial Chamber confers]

19 MR. GUY-SMITH: And -- and so there's -- and -- and so there's no

20 doubt, we do join in in --

21 JUDGE ORIE: You join.

22 And Mr. Harvey?

23 MR. HARVEY: Yes, we join too.

24 JUDGE ORIE: Yes. We were just considering whether the

25 assumptions of Mr. Emmerson would be the right ones before I would give

Page 10492

1 you an opportunity to -- but Mr. Emmerson's assumption was right. The

2 Chamber denies admission for D137, D138, and D139.

3 Then we move on in the --

4 MR. EMMERSON: Just before --


6 MR. EMMERSON: -- the Trial Chamber does. I'm conscious of the

7 fact that D135 is an excerpt, again, from the Milutinovic pre-trial brief.

8 JUDGE ORIE: I think we dealt with that, or am I wrong?

9 MR. EMMERSON: Yes. I -- I wanted to ensure that we'd dealt with

10 it in both instances where it arose. But I gather it's the same exhibit

11 number in both places and therefore I -- I had been under the impression

12 that it had been given two separate exhibit numbers. That's my mistake.

13 The other matter I wasn't certain about was whether we had dealt

14 with D190, which appears under item 12.

15 JUDGE ORIE: I think we have -- we left Witness 69 --

16 MR. EMMERSON: Oh, I'm sorry, for that reason. Very well.

17 JUDGE ORIE: For that reason, we have not dealt with it.

18 MR. EMMERSON: I can assist to this extent in clearing that matter

19 out of the equation. That is an excerpt from the Milutinovic indictment.

20 And for the same reasons as those which we have taken in relation to the

21 pre-trial brief, that exhibit number can be vacated.

22 JUDGE ORIE: Yes. So although we have not dealt with any other

23 matters under Witness 69 ...

24 May I take it, Mr. Harvey and Mr. Guy-Smith, that you would join

25 in that respect?

Page 10493

1 Then although we have not dealt with the other ones, D190 is

2 vacated.

3 We move on. Next one are the exhibits which were introduced

4 through witness Branko Gajic. We first have a series of documents.

5 That's P1139 up to and including P1172. But they were by mistake on the

6 earlier MFI list, because they were admitted on the 23rd of October. And

7 I do understand that the registrar, who was informed about this, has

8 changed the status into exhibits rather than in MFIs.

9 Then I think that one of the things that remains was P1174, which

10 is a proclamation by the VJ Pristina Corps about extension of the border

11 zone. That exhibit was not dealt with for at this moment unknown reasons

12 to me on the 23rd of October together with the other Gajic documents. So

13 therefore the Defence is invited to tell the Chamber if there are any

14 objections against admission.

15 If there are no objections, P1174 is admitted into evidence.

16 We then move on to item 18, that is, D91, which is an OTP witness

17 statement dated the 23rd of October, 2006 and the 1st of November, 2006.

18 Mr. Emmerson.


20 JUDGE ORIE: Do we need this? Because you have read into the

21 transcript the relevant portions of those statements.

22 MR. EMMERSON: Yes. I'm -- I'm just checking at the moment, but

23 the -- the Defence witness statement that was made by the witness

24 concerned -- I don't -- the witness through whom this exhibit was also

25 tendered -- I'm checking to ensure that that was exhibited at the time.

Page 10494

1 This document is a Prosecution witness statement of his sister.


3 MR. EMMERSON: And the Trial Chamber is quite correct to say that

4 the relevant portions were read into the record. And so in those

5 circumstances, I again take the position that I anticipate that the Trial

6 Chamber's prior rulings will extend and therefore in those circumstances

7 we'd invite the Trial Chamber to confirm that this document be marked not

8 admitted.

9 [Trial Chamber confers]

10 JUDGE ORIE: D91 is not admitted into evidence, and therefore its

11 status changes in marked not admitted.

12 We move on to item 19 on the agenda, that is, the exhibits

13 introduced through the witness Gojkovic, the first ones being 1 -- D192,

14 193, and 194. These are the, if I could call them, the Pervorfi

15 judgements -- well, the Pervorfi documents. There are three of them. Now

16 they were MFI'd but no admission has yet been sought. Do you want to

17 tender them?

18 THE INTERPRETER: The interpreters would like to ask Mr. Emmerson

19 to orient his microphone, because when his head is down, because he's

20 reading documents, we can't hear very well. Thank you.

21 MR. EMMERSON: I will just orient my head a little closer to the

22 microphone.

23 The answer is yes, those documents are tendered.

24 JUDGE ORIE: Any objection, Mr. Re?

25 You remember the issue of the -- of the two -- I think they were

Page 10495

1 brothers, investigated for terrorism. Later a case was brought against

2 them in a different place. Possession of arms --

3 MR. RE: Yes. It's -- it's all coming back to me. It's -- these

4 are -- these are documents which are in the same category as those the

5 Prosecution is seeking to admit through, I think it was, Mr. Stijovic and

6 other witnesses of witness statements taken at the time from relevant --

7 JUDGE ORIE: Well, if -- if I -- I think that the relevance of

8 these documents, at least in the view of the Prosecution, is that where

9 investigations were aiming at accusations of terrorisms -- terrorism, that

10 later on the -- in the follow-up of that case developments were such that

11 you could seriously doubt at a -- as to whether there was any basis at all

12 for suspicion of terrorism. So I did understand the relevance of these

13 documents to be a bit different from what you are pointing at now.

14 Mr. Emmerson, if I'm wrong, then please tell me.

15 MR. EMMERSON: They're in an entirely different category to the

16 documents produced by Mr. Stijovic. These are not the statements of Krist

17 and Leke Pervorfi.

18 JUDGE ORIE: No, it's a judgement --

19 MR. EMMERSON: These are the court judgement and then the formal

20 notice of withdrawal of the Prosecution against both of them in respect to

21 charges of terrorism.

22 I should say that unless I'm mistaken, the -- Your Honour referred

23 to exhibits marked D192 to D194 inclusive, and in fact I think I'm right

24 in saying that the Leke and Krist Pervorfi documents are D192 and D193.

25 JUDGE ORIE: Yes. And D194 is in --

Page 10496

1 MR. EMMERSON: A different category.

2 JUDGE ORIE: -- an HLC --


4 JUDGE ORIE: -- report on violation of fair trial rights.

5 MR. EMMERSON: Exactly.

6 JUDGE ORIE: That's separated from --

7 MR. EMMERSON: That's a separate issue.

8 JUDGE ORIE: But there is some link as to the fairness of

9 proceedings brought against accused persons.

10 MR. EMMERSON: May I make it clear we do tender those -- the court

11 document and we tender the official notice of withdrawal, both of which

12 have been explained and examined in the evidence of Mr. Gojkovic. But

13 they are, in our submission, relevant not simply to the ultimate issues

14 but to the admission of the witness statements upon which the Trial

15 Chamber has yet to rule; that is to say, the witness statements of Leke

16 and Krist Pervorfi. So -- so I'm in the Trial Chamber's hands as to

17 whether or not they should be admitted at this stage or at a later stage,

18 but they are tendered in part to support the Defence objections to the

19 admission of the witness statements of Leke and Krist Pervorfi and others

20 in connection with this incident, as well as being tendered in the

21 alternative, as matters relevant to the ultimate issue.


23 Mr. Re, they are of a bit of a different type. You would agree

24 with that?

25 MR. RE: Of course. But what I'm -- what I'm emphasising is they

Page 10497

1 are in the same general broad category of contemporaneous documents taken

2 by Serbian judicial or police authorities.

3 JUDGE ORIE: Yes. But let's -- let's try not to mix up things.

4 MR. RE: I don't object if that -- if it assists, I don't object.

5 JUDGE ORIE: Not objecting against these documents. Of course,

6 you could later explain that you did not object because you considered

7 this kind of material admissible evidence. But, of course, there's no

8 credit given for not making any objections. I just want to make that

9 clear.

10 MR. RE: Can I explain? I don't -- I don't object. They are

11 relevant. They are probative.

12 JUDGE ORIE: Okay.

13 MR. RE: They're admissible documents. And, of course, they go to

14 that -- that issue.

15 JUDGE ORIE: But --

16 MR. RE: But the comment I'm making is they are as probative and

17 relevant as the documents within those categories. And that's all I'm

18 saying. But these ones may have more reliability than others. And that's

19 for the Chamber to determine.

20 JUDGE ORIE: Of course the Chamber is not -- of course, sometimes

21 is thinking in terms of categories but always will look at every

22 individual document as well.

23 MR. EMMERSON: I'm sorry to rise to my feet again in relation to

24 this, but it's simply on -- on what seems to have possibly have been a --

25 an administrative error that's crept into the list.

Page 10498

1 I indicated a moment ago that D194 was a document in a different

2 category. Can we put that to one side for one moment.

3 The documents that relate to Leke and Krist Pervorfi, the court

4 judgements and related documents, are, according to our records, not

5 simply D192 and D193 but also D191, which does not appear on item 19 of

6 the Trial Chamber's list.

7 JUDGE ORIE: No, but let's just check what the status of that

8 document is. It could be that it's already admitted into evidence.


10 JUDGE ORIE: Or that it is already non-admitted. We'll hear from

11 Mr. Registrar.

12 THE REGISTRAR: Your Honours, for D191, I have the document as

13 marked for identification on 1st of November through Mr. Emmerson.


15 JUDGE ORIE: Yes. So then it is missing on our list.

16 MR. EMMERSON: Exactly. D191 was the judgement.

17 JUDGE ORIE: Yes. Okay. Then we add D191.

18 Mr. Re, any objection against the judgement?

19 Then D191, D192, D193, and D194 are admitted into evidence.

20 We now move on to P1194 up till and including P1203. These have

21 been tendered. Any objections?

22 MR. EMMERSON: I'm so sorry. I'm afraid we've slightly fallen

23 behind the Trial Chamber, because we're trying to be absolutely certain

24 about the numbers that immediately precede. And I do apologise for that.

25 But may I catch up with you at this stage.

Page 10499

1 [Trial Chamber confers]

2 MR. GUY-SMITH: Excuse me. This particular set of exhibits is one

3 where we might be doing a bit of bobbing and weaving in terms of

4 identifying those which --

5 JUDGE ORIE: Yes. To -- what I have on my list is that these are

6 all annexes to the 92 ter statement of Mr. Gojkovic.

7 MR. GUY-SMITH: Correct.

8 JUDGE ORIE: Which was -- the 92 ter statement is admitted. 1194

9 is just the index. 1195, documents concerning KLA hostile activity.

10 Well, I've got the list here. Map of Dukagjini Zone. Nine photographs is

11 already -- is one on that list but was already admitted into evidence.

12 Then annex 4, map marked with the approximate area around Lake

13 Radonjic which was secured by the MUP.

14 So I have the list here every item --

15 MR. EMMERSON: I'm sorry to rise to my feet at this stage to

16 interrupt Your Honour.


18 MR. EMMERSON: But I wonder if it might be possible just to return

19 to this.

20 JUDGE ORIE: Okay.

21 MR. EMMERSON: Because there were two documents at least that were

22 objected to in that range, and I simply want to identify exactly which

23 ones they are.

24 JUDGE ORIE: Yes. Then we'll hear from you after the break.

25 Mr. Guy-Smith.

Page 10500

1 MR. GUY-SMITH: I think that would be appropriate, because I'm

2 looking through some of our notes. I --

3 JUDGE ORIE: Do you happen to remember which annexes it were that

4 were -- then we could further ...?

5 MR. GUY-SMITH: I believe that it's -- one of the documents is

6 contained in the annex that we just were referring to, annex 4, and one of

7 them is, I believe, in annex 8.

8 JUDGE ORIE: Okay. Then we'll hear from -- annex 8.

9 MR. GUY-SMITH: I believe so, yes.

10 JUDGE ORIE: I marked that already. That is P01199.

11 MR. GUY-SMITH: And there's a problem, I believe, in annex 11.

12 JUDGE ORIE: Annex 11 is P01202.

13 Yes. We will revisit the matter after the break. Let me just --

14 Then there is P1205 up to and including P1208. They have already

15 been dealt with, that is, marked not admitted on Thursday the 1st of

16 November.

17 We'll have a break soon, but the next one on the list is P1213 in

18 relation to witness Haskaj, 1213 being the 92 ter statement.

19 If there are no objections - and I'm looking to Defence teams - no

20 objections. Therefore, P1213 is admitted into evidence.

21 Where P1214 and 1215 earlier were still on the list of MFI'd

22 documents, they meanwhile have been admitted into evidence.

23 MR. EMMERSON: Can I in one sentence --


25 MR. EMMERSON: -- Simply record that though we are not objecting

Page 10501

1 to the admission of 1213, the testimony of the witness significantly

2 undermined his 92 ter attestation in respect of certain significant

3 passages --

4 JUDGE ORIE: The Chamber is aware of that. Yes, you are referring

5 to what the witness said about that he has drawn the attention to

6 incorrect portions of it. At the same time, yes, the attestation in the

7 beginning was giving it the same --

8 MR. EMMERSON: I've reconsidered the attestation with a view to

9 asking myself whether it was properly made in the light of the answers

10 that were subsequently given. I have to say the --

11 JUDGE ORIE: The Chamber is -- the Chamber is aware that -- of

12 what you just referred to.

13 Then -- yes, the next one - and that will be the last one before

14 the break - is P357, which was tendered through the witness Cufe Krasniqi.

15 It is a picture of the -- of a -- of some premises in Jablanica.

16 I thought at the time that it was already admitted. We have

17 checked this. P333 is the same document, although with markings. Now,

18 the Chamber wonders what purpose could be served by introducing this same

19 photograph, although now without markings.

20 Mr. Re, the picture is there, although with some markings on it,

21 admitted into evidence. Do we need that same picture again now without

22 the markings?

23 I checked it. It's exactly the same picture.

24 MR. RE: Only if you want an unmarked record of the same

25 photograph.

Page 10502

1 JUDGE ORIE: You tendered it. It's -- the Chamber didn't seek it.

2 But we have to decide on whether to admit it. And we ask you to

3 reconsider whether it's of any use to tender this photograph now in an

4 unmarked way. The only thing I could imagine is that it might be easier

5 for those who are reading the record, because I take it it has been put to

6 the witness who was testifying, or it could even be the same witness. I'm

7 not certain about that.

8 MR. RE: Yeah, look, I press for the tender on the basis that it's

9 an unmarked photograph and it assists the comprehension of the proceedings

10 and it certainly doesn't hurt.

11 JUDGE ORIE: Well, it hurts in terms of even more paper.

12 Yes, Mr. Registrar, could you inform us as to the witnesses

13 three -- under which -- through which P333 and P357 were introduced. I

14 see from here that you've got the right picture on your screen.

15 THE REGISTRAR: Your Honours, that was marked for identification

16 on 14th of June through Cufe Krasniqi.

17 JUDGE ORIE: Yes. And 35 -- 333?

18 THE REGISTRAR: Your Honours, 333 was admitted into evidence on

19 1st of June through Witness 6.

20 JUDGE ORIE: Yes. We'll --

21 [Trial Chamber confers]

22 JUDGE ORIE: The Chamber does not admit P357 into evidence because

23 it's repetitious and it's now clearly on the record that --

24 Yes.

25 MR. RE: Could I query -- I think there were two witnesses on that

Page 10503

1 day. The first one was Witness 6, and he marked it. The second witness

2 was the one I took, and I think I showed him that photograph to identify

3 it as that particular building. So I think there were -- they were shown

4 for different purposes to different witnesses. I think -- I think that's

5 the why the same witness was shown -- the same photo was shown on two

6 different days, so that the one which I showed the -- the second witness,

7 Mr. Krasniqi, should, in my submission, remain on the record as the photo

8 he identifies of that particular place. That's P357.

9 JUDGE ORIE: Yes, I tend to agree with you.

10 [Trial Chamber confers]

11 JUDGE ORIE: Mr. Re, you're right. For -- for purely procedural

12 technical reasons, we should keep it.

13 And since I would in the normal circumstances say that it could

14 be -- it could keep the status of marked for identification, but that's

15 not possible, so we either have to get it off the list or to not admit it.

16 But in order to better understand the testimony of Mr. Krasniqi, I think

17 we should keep it in. And that is that it is admitted into evidence,

18 unless there's any objection.

19 MR. HARVEY: My objection, Your Honours, is only to the manner in

20 which it is described.

21 JUDGE ORIE: Reference to "prison," you would say?

22 MR. HARVEY: Right. In fact, Mr. Krasniqi in his testimony

23 referred it to as the staff headquarters of Jabllanice.


25 MR. HARVEY: And the word "prison" did not pass his lips.

Page 10504

1 JUDGE ORIE: You may have noticed that when I described the

2 picture a minute ago, I was talking about Jablanica premises, rather than

3 to a prison. The description will be adapted.

4 MR. HARVEY: Thank you, Your Honour.

5 JUDGE ORIE: Then I said this was the last one before the break.

6 We will have a break. We'll resume at 1.00.

7 And I'm relatively confident that we might go through the whole

8 list today, apart from the complex matters that are still waiting for us.

9 We'll resume at 1.00.

10 --- Recess taken at 12.36 p.m.

11 --- On resuming at 1.10 p.m.

12 JUDGE ORIE: At the start of today's hearing, I made a correction

13 on the record in relation to a decision of the 11th of July. Now, it

14 appears on the transcript that I said - and I may have said so - that we

15 only admit the 16th of April, 1997 statement. If I said that, it's wrong,

16 because it should be that we only admit the 16th of April, 2007 statement.

17 That is the one with the 92 bis attestation. So that is a correction to a

18 correction.

19 Before we continue, Mr. Emmerson, the Chamber was informed that

20 the Defence would rather delay its announcement whether or not to file any

21 98 bis submissions. Until when would you need?

22 MR. EMMERSON: Until the close of the Prosecution case.

23 JUDGE ORIE: Yes. Mr. Re, I take it that there's no ...

24 MR. RE: There's no objection. We take no position on the

25 application.

Page 10505

1 JUDGE ORIE: Yes. Then your request is granted.

2 We deliver a few decisions. First of all, the 92 ter statement

3 of -- of Mr. Gojkovic.

4 The Chamber has considered whether or not it should further

5 require redactions from the P885 and -- no, I'm now confusing matters.

6 One moment, please.

7 No, I think we are talking about Witness 17. I apologise for the

8 mistake.

9 [Trial Chamber confers]

10 JUDGE ORIE: Yes, I am talking about Witness 17.

11 Before the break, I indicated what redactions the Chamber expected

12 still to be made on the basis of one mistake and on the basis of further

13 agreement to redact and to de-redact certain portions.

14 Then Mr. Emmerson asked the Chamber to consider to redact further

15 that statement by excluding those portions where during the examination of

16 the witness no further support was sought to elicit from the witness.

17 The Chamber has decided that the Chamber will admit P885 with the

18 redactions it earlier indicated but that the Chamber does not require any

19 further redactions.

20 Then as far as P896, P897, P898, and P902 are concerned, they are

21 not admitted into evidence. The Chamber will not draw any consequences

22 out of this non-admission for the admission of the 92 ter statement.

23 Then we move on to item 22 on the agenda. We're talking about

24 D162 and P919 and P920. They have been MFI'd. They have, however, not

25 been tendered.

Page 10506

1 Mr. Emmerson, D162.

2 MR. EMMERSON: Yes, D162 is tendered.

3 JUDGE ORIE: Is tendered.

4 Any objections against D162? Not. Therefore, admitted into

5 evidence.

6 We now move to P919 and P920, the first one being a criminal

7 report against an unknown perpetrator, Popadic and Jovanovic as victims.

8 P920, it is a document from the Serbian Ministry of Foreign Affairs.

9 Mr. Re.

10 MR. RE: Well --

11 JUDGE ORIE: Are they tendered?

12 MR. RE: Yes.

13 JUDGE ORIE: They are tendered.

14 Any objections?


16 JUDGE ORIE: Then assuming that other Defence counsel join --

17 MR. GUY-SMITH: I'm sorry. Absolutely not. No objections.


19 MR. GUY-SMITH: No objections.

20 JUDGE ORIE: Yes. Well, I was a bit -- you said "absolutely not."

21 And I was assuming that you would join. And, as a matter of fact, you

22 absolutely wanted to join.

23 MR. GUY-SMITH: Right.

24 JUDGE ORIE: Yes. That's now clear --

25 MR. GUY-SMITH: What I meant was absolutely not, meaning no

Page 10507

1 objection.

2 JUDGE ORIE: Yes. P919 and P920 are admitted into evidence.

3 We now move on to the documents tendered through Witness 8. May I

4 remind the parties that the Chamber earlier considered in relation to

5 Witness 8 that if at a later stage the Chamber were to receive evidence

6 from other sources that would shed a different light on the reliability

7 and credibility of Witness 8 as now perceived by the Chamber, that it

8 would then remain open to the Chamber to reconsider proprio motu or on the

9 motion of one of the parties whether Witness 8 should be called to

10 complete his testimony.

11 The Chamber has not received any evidence nor any submission by

12 the parties which would lead it to reconsider its position. Therefore,

13 under those circumstances, the Chamber denies admission of all outstanding

14 exhibits tendered through this witness, which are D93 to D95, D97 through

15 D105, and P40.

16 I think that the pseudonym sheet was already admitted. We'll

17 verify that. But that would be not an outstanding exhibit any more, so

18 that is not covered by this ruling. This ruling only deals with

19 outstanding exhibits.

20 Then we move on to Witness 17, 24 on the agenda. P906 is a

21 pseudonym sheet for Witness 17. In the absence of any objections, should

22 be admitted into evidence.

23 [Trial Chamber and legal officer confer]

24 JUDGE ORIE: My attention was drawn to the fact that for the

25 second time today I admitted the pseudonym sheet of Witness 17. So the

Page 10508

1 parties can be assured that there could be no doubt as to its admission.

2 For Witness 55, there's also P915, pseudonym sheet.

3 Mr. Emmerson.

4 MR. EMMERSON: We would respectfully invite the Trial Chamber to

5 consider deferring the question of the admission of that pseudonym sheet

6 until the Trial Chamber has decided what to do in respect of the presence

7 on the record of the testimony given by that witness in chief.

8 JUDGE ORIE: Yes. Well, of course we -- we might -- if we are

9 just talking about the pseudonym sheet, I think it's the only document

10 that identifies the person that appeared before the Chamber.

11 MR. EMMERSON: Correct.

12 JUDGE ORIE: So therefore whatever reason you would give for any

13 subsequent -- any -- any --

14 MR. EMMERSON: Well, I'm --

15 JUDGE ORIE: -- any sequential decisions --

16 MR. EMMERSON: I take Your Honour's point.

17 JUDGE ORIE: It's good to know in respect of whom -- if, for

18 example, if you would ever order any medical examination of a person, then

19 you would at least have to know who that person is.

20 So therefore, I'm inclined - and my colleagues also are inclined -

21 not to defer that but to admit P915 into evidence.

22 The next item on the agenda, in relation to Witness 71, a video

23 taken at Hotel Pastrik.

24 [Trial Chamber confers]

25 [Trial Chamber and legal officer confer]

Page 10509

1 JUDGE ORIE: Yes. This video tendered through Witness 71 is a

2 video which was MFI'd but not tendered, Mr. -- Mr. Re. Do you want to

3 tender it?

4 MR. RE: I do.


6 Mr. Emmerson.

7 MR. EMMERSON: I -- I oppose simply on the basis it is of nil

8 probative value. The witness testified and gave unchallenged evidence

9 that he attended Hotel Pastrik and that he was unable to identify the

10 remains of his brother. So there's no challenge to the issue of his

11 presence there.

12 Insofar as it is the words spoken on the videotape which the

13 Prosecution seek to rely upon, as the Trial Chamber observed during the

14 course of the testimony, the passage is incomprehensible and consists of a

15 number of leading propositions being put to the witness which were then

16 not in any way supported or reflected in his testimony. So it adds

17 nothing to the probative weight of the witness's evidence. There is no

18 dispute to the fact that he was present at Hotel Pastrik. And beyond that

19 neither the video nor the transcript can have any probative value in the

20 case.

21 MR. RE: That's not --

22 JUDGE ORIE: Mr. Re.

23 MR. RE: That's incorrect.

24 JUDGE ORIE: First of all, where I earlier said that it was

25 tendered but not -- no admission was sought, I think this video was played

Page 10510

1 twice; once in relation to Witness 71 and once in -- I think it was

2 Witness Gojkovic who was shown this video as well. Could you please

3 respond.

4 MR. RE: It's in evidence. The video is in evidence. I can't

5 tell you the exhibit number. It's an extract --


7 MR. RE: It's an extract of the video which is already in evidence

8 and it's an extract which we had enhanced so that you can hear the

9 witness's -- what the witness is saying.

10 The value of it is it's the witness's contemporaneous account of

11 what happened to his relative when he went to identify his relative.

12 The words are audible. There is a transcript. It's on the --

13 it's been digitised. You can see it. And it's already in evidence. It's

14 just an extract which has been enhanced. So --


16 MR. RE: It -- I just can't see how the Defence can object to an

17 extract of a video being separately tendered with an enhancement.

18 JUDGE ORIE: Yes. But at that time apparently with no audible

19 text on the video.

20 MR. RE: That -- that may have been the case. But the -- as I

21 understand it, the enhanced video has been disclosed and, I'm told,

22 uploaded into e-court as the correct -- I'm told as the authentic or -- as

23 the authentic version.

24 JUDGE ORIE: Yes. Now, I think one of the arguments was that it

25 doesn't add anything. Is -- is there any dispute, Mr. Emmerson, that

Page 10511

1 the -- what was said by the witness at that time about what had happened,

2 that -- that that's in any way inconsistent with what he says now?

3 MR. EMMERSON: I'm not sure I fully understand Your Honour's

4 question. The --

5 JUDGE ORIE: Well, if we -- Mr. Re says it's the contemporaneous

6 version of what he told at the time. Therefore, of course, if that adds

7 anything --

8 MR. EMMERSON: But as Your Honour will recall, the passage is

9 completely incomprehensible and it is spoken by a man who says he doesn't

10 speak fluent Serbian or understand it.

11 And I don't know if Your Honour recalls the passage.

12 JUDGE ORIE: I don't remember the -- I remember the images, but I

13 don't remember the exact text.

14 MR. EMMERSON: Well, in fact Your Honour -- Your Honour observed

15 in relation to the transcript during the course of the testimony of

16 Witness 71 that it was frankly impossible to determine what he was saying.

17 It's snippets of conversation. And then there are suggestions put by

18 other people who are referred to on the transcript as "police officers."

19 And there is no coherent material in the transcript at all.

20 On the other hand, the witness has given oral evidence before the

21 Trial Chamber and such testimony as he's given is direct testimony.

22 There's not -- there's not a question of consistency or inconsistency.

23 The transcript is simply incomprehensible.

24 JUDGE ORIE: You would say being incomprehensible, it could not

25 possibly add anything to --

Page 10512

1 MR. EMMERSON: It could not possibly add anything.

2 JUDGE ORIE: Mr. Re, you --

3 MR. RE: The issue is, as I recall -- I'd have to go back and look

4 at this -- is that the witness is now older. It was nine years ago. His

5 Serbian then was better than his Serbian now. He was speaking to -- and I

6 think it was Professor Dunjic, I think you can see in the frame - I'm

7 going from memory - sorry, it was Judge Gojkovic. You could see him --

8 could see them talking and he was telling the judge what he'd heard about

9 what happened to his brother.

10 Now, that was evidence which - I'm going by memory - I don't think

11 he was able to reproduce in court, but it's the best-available evidence of

12 what he said at the time in going to look for his -- his relative.

13 Now, there is a transcript, and it is digitised. I'm told it's

14 part of Exhibit P452, for the record.

15 JUDGE ORIE: Mr. Emmerson -- Mr. Guy-Smith.

16 MR. GUY-SMITH: The witness was not speaking Serbian. He was

17 speaking through a translator. It's very clear when you look at the film

18 that that's part of what's going on.

19 And, second of all, he indicated that at that time back then, his

20 Serbian was poor at best. I just wanted to deal with those particular

21 factual issues.

22 JUDGE ORIE: Mr. Emmerson.

23 MR. EMMERSON: Those are matters which obviously are relevant.

24 But critically the transcript is incomprehensible. There is no account

25 recorded by the witness in the transcript.

Page 10513

1 MR. RE: There's a transcript at P01192, which is the enhanced --

2 the transcript of the enhanced tape.

3 The whole -- the whole purpose of the excerpt was to enhance it

4 to -- the Dutch -- the Dutch forensic laboratories went and enhanced it to

5 a quality where it could be heard.


7 MR. RE: And it has been transcribed. The Defence does have a --

8 a transcript of it.


10 MR. RE: If they go away and listen to it, I'm sure we can resolve

11 this.

12 MR. EMMERSON: I'm sorry, Mr. Re is misunderstanding me.

13 We all had the enhanced transcript available to us in court. The

14 enhanced transcript produces an incomprehensible conversation not because

15 you can't hear it, but because even assuming the enhancement is correct

16 there's snippets of snatched words where police officers are putting

17 propositions to the witness. There is no response recorded to the

18 propositions and no account given. It's completely incomprehensible.

19 [Trial Chamber confers]

20 JUDGE ORIE: Mr. Re, could -- could you guide the Chamber as to

21 where exactly in this document to find what you consider to be a

22 understandable ...

23 I have got it in front of me. So if you take me to the pages

24 where we find that, we can decide.

25 It's a five-page document. I'm now on page 3. I have not found

Page 10514

1 yet what you said the exhibit would bring us.

2 MR. RE: Okay. I've got it here.


4 MR. RE: I've got a printout.

5 At first -- I mean, the question of comprehensibility is a side

6 issue, in my submission. It's the issue of what the witness --

7 JUDGE ORIE: Mr. Re, you said it is relevant because it gives a

8 contemporaneous report to others on the disappearance of a family member

9 of Witness 71. So I'm inviting you now to tell us where we find a

10 understandable ...

11 MR. RE: Okay. It starts where he's -- where he's looking at the

12 body.

13 JUDGE ORIE: If you -- if you give me the --

14 MR. RE: Page 1.

15 JUDGE ORIE: -- page of the transcript.

16 MR. RE: Page 1.

17 JUDGE ORIE: Okay. I'm on page 1 of the transcript now, yes.

18 It started where there is a wedding --

19 MR. RE: If you just give me a moment, please.


21 MR. RE: It's speaker 2. Speaker 2 is -- is the witness.


23 MR. RE: They're asking about a wedding band. "No, there isn't."


25 MR. RE: Then they -- hang on. Where is it?

Page 10515

1 I'm -- I'm sorry. I'm going to have to return to this, if the

2 Trial Chamber would allow me to.

3 JUDGE ORIE: No. Mr. Re, if you tell us what we find there and if

4 we invite you to show where it is, and you say well -- no, that means that

5 you're not properly prepared.

6 MR. RE: Your Honour, there are over 100 documents on the list.

7 JUDGE ORIE: Yes. What do you think I did yesterday?

8 MR. RE: On this particular one I need to look at it again. All

9 the others I think I've been okay so far. Just on this one.

10 JUDGE ORIE: Okay. Then take care, because we want to -- well,

11 we'll move on. We might decide to read it and to decide on the matter.

12 MR. EMMERSON: Could I just remind the Trial Chamber --


14 MR. EMMERSON: -- where the matter came up in evidence and the

15 Trial Chamber's reaction to it at that stage. Which is 10037, lines 1 to

16 15.

17 [Trial Chamber confers]

18 JUDGE ORIE: The Chamber at this moment decides that the video

19 tendered under P1192 is not admitted into evidence. And if the

20 Prosecution wants the Chamber to reconsider this decision, then an

21 application should be made.

22 The Chamber is not encouraging, also on the basis of its own

23 recollection, apart from now looking at the transcript but also

24 recollection of what we thought at the time, is not encouraging the

25 Prosecution to do so.

Page 10516

1 Then we move on to 27, MFIs D123 up to and including D129.

2 MR. EMMERSON: Can I just indicate --

3 JUDGE ORIE: Mr. Re, I think you requested to be heard before we

4 would decide on the admission of these Defence exhibits. And that was on

5 the 31st of August.

6 [Trial Chamber confers]

7 MR. RE: These documents are, in my submission, in the same

8 general category as the ones I've referred to before, contemporaneous

9 reports, statements, and on that basis, we don't object to the -- the

10 Trial Chamber receiving them into evidence. The -- the amount of weight

11 you can give them must be considered in light of all -- all of the

12 circumstances.


14 MR. RE: That's the only basis upon which we don't object to the

15 admission into evidence.

16 JUDGE ORIE: Yes. And, of course, you'll expect equal treatment,

17 isn't it, for Prosecution exhibits?

18 MR. RE: Well, I think it goes without saying.

19 JUDGE ORIE: Yes. Then D123 up to and including D129 are admitted

20 into evidence.

21 The next item on the agenda is 28.

22 MR. EMMERSON: Just -- just before Your Honour moves on.


24 MR. EMMERSON: Just to be clear, D124 we believe to be also

25 exhibited as P871.

Page 10517

1 JUDGE ORIE: We'll check that.

2 MR. EMMERSON: Or at least marked for identification, I'm sorry,

3 as P871.

4 JUDGE ORIE: Well, if it's marked for identification only, we

5 should come across it, because we're dealing with all MFIs.

6 MR. EMMERSON: And --

7 JUDGE ORIE: But I make a note that D124 you think is the same as

8 P871.

9 MR. EMMERSON: And D126 is the same as P395.

10 JUDGE ORIE: If they are the same documents, if they are admitted

11 into evidence, then the Chamber will accordingly vacate the numbers, if

12 the documents are really exactly the same.

13 We move on to item 28 on the agenda. I think all of the exhibits

14 have been dealt with, so there's no item left as far as the Zyrapi

15 exhibits are concerned.

16 I move on to 29, Witness 28. We have the numbers 195 -- Defence

17 195. And I start with 195 up to 202, weekly reports of human rights

18 organisations in Kosovo; number 203 being used by Mr. Harvey in

19 cross-examination.

20 Should these documents be admitted into evidence -- of course,

21 they were referred to. The witness has testified about them.

22 Mr. Guy-Smith.

23 MR. GUY-SMITH: Yes. I -- I do seek their admission. And

24 additionally, there were a number of other reports that we were waiting

25 for MFI numbers to be given to.

Page 10518

1 These specific reports -- and I'll deal with those first because

2 the witness did identify each -- each one of those and identified material

3 in each one of those, I believe.

4 JUDGE ORIE: Yes. The concern of the Chamber is - and that might

5 be considered when deciding the matter - is that it might be appropriate

6 rather to leave it at the witness comments on these reports in her

7 testimony, rather than to bring in a lot of other material which might be

8 not relevant, might -- we have, of course, not looked at all these

9 documents in its entirety. And to admit it into evidence could give us

10 great surprises at a later stage.

11 For that reason, the Chamber would certainly urge the Defence to

12 reconsider that position and to see whether we could not satisfy ourselves

13 with what the witness said and what was put to her in relation to these

14 documents.

15 MR. GUY-SMITH: To -- to the extent these -- these are records

16 of -- truly contemporaneous records of daily reporting, I think they are

17 of assistance to the Chamber. However, I take the Chamber's words in

18 mind --


20 MR. GUY-SMITH: -- and will come back to the Chamber with regard

21 to this issue.

22 JUDGE ORIE: Yes. Then we move on to P1212, which is a report by

23 Human Rights Watch.

24 The Chamber would invite you, Mr. Re, to specify which parts of

25 the report you would seek to have admitted.

Page 10519

1 MR. RE: Now?

2 JUDGE ORIE: Well, I can imagine that you could not give an answer

3 immediately, but perhaps you could inform the Chamber as soon as possible.

4 MR. RE: I can do that fairly quickly, but I just wouldn't be able

5 to do it on my feet --

6 JUDGE ORIE: Yes, I do understand that.

7 MR. RE: -- while we're standing here.

8 JUDGE ORIE: Apart from that, it's 13 minutes to 2.00. So for

9 that reason -- when do you think you could specify the portions of the

10 report?

11 MR. RE: I can have that by tomorrow.

12 JUDGE ORIE: By tomorrow. Then we'll --

13 Mr. Emmerson.

14 MR. EMMERSON: We can deal with that tomorrow. We oppose the

15 admission of the report or any portion --

16 JUDGE ORIE: Yes, I do understand that. But we are now, I think,

17 in a bit of a different situation where the Chamber has invited the

18 Prosecution to ...

19 Then we have D205, which was tendered from the bar table. Either

20 we can decide on admission, then it should be admitted under seal, because

21 there are some data on D205 which, I would say, for names, layout of

22 certain matters, which are not for the public. So we could admit it under

23 seal.

24 There is another possibility that the parties would agree on what

25 is the basic content of D205; that is, that upon measurement, this

Page 10520

1 document tells us that Mr. Balaj measures 1 metre, 78 centimetres. If the

2 parties could agree on that, we don't need the document any more.

3 Mr. Guy-Smith.

4 MR. GUY-SMITH: I would hope so.

5 JUDGE ORIE: Mr. Re, you'd agree to that? Then we can ...

6 MR. RE: Yes.

7 JUDGE ORIE: Yes. Then we vacate D205.

8 MR. GUY-SMITH: If I might, Your Honour.


10 MR. GUY-SMITH: I'd like to raise very quickly. This deals with

11 Witness 28.


13 MR. GUY-SMITH: And specifically, this arises in another matter.

14 I was reviewing her 92 ter statement. And I feel that incumbent upon

15 myself to object to paragraph 73 of her statement inasmuch as it contains

16 information with regard to a witness who had previously testified in these

17 proceedings for whom the Prosecution never led any of that evidence.

18 And I'll leave it at that at this point.

19 JUDGE ORIE: It's on the record. We'll -- you will imagine that I

20 couldn't give an immediate answer to that.

21 Then I'd like to -- I think we have to ...

22 [Trial Chamber and legal officer confer]

23 JUDGE ORIE: There is one more matter, one more decision; that is,

24 in relation to witness Gojkovic, numbers P1194 up to and including P1203.

25 With an exception of two, they're admitted into evidence. Not yet

Page 10521

1 admitted into evidence is annex 8, which is P1199. The same document is

2 tendered through Witness 69 as well. A final decision will be taken in

3 relation to this document once we have dealt thoroughly with Witness 69 as

4 well. So therefore, that one is still pending.

5 Then in relation to P1202 ...

6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber has decided in relation to P1202 to take

8 more time to consider whether it should admit that document or not.

9 The others - that means P1194 up to and including P1198, then

10 P1200 and 1201 and P1203 - are admitted into evidence.

11 Mr. Re.

12 MR. RE: Can I just correct myself. As Your Honour rightly

13 pointed out, I think in relation to Exhibit P -- or former MFI P1192,

14 where I said, "The value is that it's the witness's contemporaneous

15 account of what happened to his relative when he went to identify his

16 relative -- went to identify his relative. The words are audible.

17 There's a transcript." When I said that, I was relying upon my memory. I

18 correct myself. It wasn't the witness's contemporaneous account of what

19 happened to his relative. It was actually the witness's contemporaneous

20 account of what happened to him, where he said that he was taken from the

21 KLA.

22 It's my faulting memory. That was the -- that was the purpose for

23 which we were attempting to -- to tender into evidence that transcript.

24 But it's already part of Exhibit --

25 JUDGE ORIE: Yes. We'll consider this, Mr. Re, whether this is

Page 10522

1 sufficient good cause shown to reconsider our decision in relation to that

2 video.

3 I would like to thank very much interpreters, technicians, and

4 court reporters, but also security - we often forget about security - for

5 their indulgence and their patience this morning, which was a very

6 fruitful housekeeping session.

7 We adjourn until Monday ...

8 [Trial Chamber and registrar confer]

9 JUDGE ORIE: Monday, quarter past 2.00, Courtroom I.

10 --- Whereupon the hearing adjourned at 1.54 p.m.,

11 to be reconvened on Monday, the 12th day of

12 November, 2007, at 2.15 p.m.