Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10912

1 Tuesday, 20 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.29 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

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

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

8 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

9 versus Ramush Haradinaj et al.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 For this afternoon, the testimony of Mr. Kabashi has been

12 scheduled through videolink; however, we could not start with that at this

13 time. Therefore, the Chamber would like to deal with a few procedural

14 matters, deliver a few decisions, and then we'll hear whether the witness

15 arrived at the location of the videolink.

16 The first thing I'd like to raise is the motion to tender tape and

17 transcript of Ramush Haradinaj addressing a meeting in July 1998, which I

18 think was filed yesterday.

19 I'd like to hear from the Defence whether they want already at

20 this moment to reply to it or whether they would need more time.

21 MR. EMMERSON: I would prefer to put in a considered reply, and I

22 can organise that by writing by tomorrow.

23 JUDGE ORIE: By tomorrow.

24 Mr. Guy-Smith.

25 MR. GUY-SMITH: I take the same position. Whether or not I will

Page 10913

1 be filing a -- an independent reply or joining that which is being

2 prepared by my colleague, I'll determine later.

3 JUDGE ORIE: Mr. Troop.

4 MR. TROOP: Good afternoon, Your Honours. We would like to take

5 the same position, please.

6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber accepts the suggestion by Defence

8 counsel, that is, that the Chamber would like to have responses filed by

9 tomorrow close of business.

10 Then the next issue I have on my list is an oral decision on the

11 admission into evidence of Roel Versonnen's 92 ter statement and

12 photo-board P1230.

13 The Chamber delivers this decision where it has not yet decided on

14 lifting the protective measures in relation to Witness 1, but since they

15 are still in place, this has some consequences for the way in which this

16 decision is delivered.

17 The Chamber will now give its decision on the admission of P1225

18 and P1230.

19 On the 12th and the 15th of November, the Chamber heard the

20 evidence of the witness Roel Versonnen. The Prosecution tendered through

21 this witness P1225, which is Mr. Versonnen's 92 ter statement.

22 On the 12th of November, the Defence for Mr. Balaj objected to

23 paragraphs 11, 15, 17, 19 and 20 of P1225; and the Defence for

24 Mr. Haradinaj objected to a large part of paragraph 18.

25 On the 15th of November, 2007, the Chamber decided that the

Page 10914

1 information contained in paragraphs 14 through 19 was to be elicited viva

2 voce. The Defence for Mr. Balaj dropped its objection to paragraph 11 but

3 continued to object to paragraph 20. No objections were raised to

4 paragraphs 1 through 13, and 21 and 22. The Chamber informed the parties

5 that it would decide on admission at a later date.

6 The Chamber considers paragraphs 1 through 13 and paragraphs 20

7 through 22 to be relevant and of probative value.

8 The Chamber orders the Prosecution to redact all of paragraphs 14,

9 15, 16, 17, 18, and 19, upload the redacted statement into e-court, and

10 inform the Registrar when this has been done. The Chamber orders the

11 Registrar to replace the current content of P1225 while maintaining the

12 same exhibit number. The Chamber admits the redacted statement into

13 evidence under seal.

14 P1225 mentions a witness who has been granted protective measures

15 in the Haradinaj et al. case. The Chamber orders the Prosecution to

16 redact -- to redact the statement so as to -- not to disclose the identity

17 of Witness 1. So that's apart from the redaction I just ordered already,

18 that is, redaction of paragraphs 14 through 19.

19 The Chamber orders the Prosecution to upload this now doubly

20 redacted version into e-court and inform the Registrar when this has been

21 done. The Chamber instructs the Registrar to assign an exhibit number to

22 it and inform the Chamber and parties of the exhibit number so assigned.

23 The Chamber admits this doubly redacted statement into evidence. And

24 that's, of course, the public version.

25 P1230 is a photo-board used by the Prosecution during the

Page 10915

1 examination-in-chief of witness Roel Versonnen. There have been no

2 objections to the admission into evidence of P1230, and the Chamber admits

3 P1230 into evidence.

4 And this concludes the Chamber's ruling on this matter.

5 The Chamber now delivers an oral decision, at this moment without

6 reasons. It is an oral decision whether the testimony of Witness 56 was

7 validly given. The decision of the Chamber is that the testimony was

8 validly given. The reasons will follow in writing.

9 Then I'd like to move into private session. No, let me just...

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 [Open session]

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

19 JUDGE ORIE: Thank you, Mr. Registrar.

20 The Chamber would now deliver its decision on the admission of two

21 Rule 92 bis statements and the application for protective measures for

22 Witnesses 68 and 42 in the tentative order of testimony.

23 On the 15th of November, 2007, the Prosecution filed the

24 above-mentioned requests, including to admit the statements dated the 13th

25 and 14th of November, 2007 into evidence pursuant to Rule 92 bis, to

Page 10916

1 assign the witnesses pseudonyms, and to keep their identities

2 confidential.

3 The Defence for Mr. Haradinaj, Mr. Balaj, and Mr. Brahimaj

4 indicated informally on the 19th of November, 2007 that they agree to the

5 tendering of the statements of the two witnesses provided that the word

6 "kidnapped" in paragraph 7 of the statement of the 14th of November, 2007

7 be redacted. The Defence teams have further indicated that they do not

8 oppose the application for protective measures for these witnesses.

9 The statement of Witness 68 in the tentative order of testimony

10 describes the disappearance of Nenad Remistar and what the witness had

11 heard about this person's whereabouts from other persons after the

12 disappearance. Witness 42 in the tentative order of testimony describes

13 in her statement the disappearance of Rade Popadic when he was driving

14 from Babaloc to Junik with his colleague. The statements are relevant to

15 counts 29 and 30 and counts 21 and 22 of the indictment, respectively.

16 They have probative value and do not contain information about the acts

17 and conduct of the accused. Furthermore, the parties have agreed to the

18 admission of the witnesses' statements, under the condition mentioned

19 before.

20 The Chamber therefore admits the statements dated the 13th and

21 14th of November, 2007 into evidence and orders the Prosecution to redact,

22 I quote, "when he was kidnapped," in paragraph 7 of the statement of the

23 14th of November, 2007. The Prosecution shall upload the newly redacted

24 version of the statement into e-court and inform the Registrar when it has

25 done so. The Chamber instructs the Registrar to assign exhibit numbers to

Page 10917

1 the two statements and inform the parties of the exhibit numbers so

2 assigned.

3 As for the application for protective measures, the legal test for

4 granting such measures applied by this Chamber has been set forth numerous

5 times, and there is no need to repeat it again.

6 The testimony of Witness 68 in the tentative order of testimony

7 may antagonise persons living in Kosovo, as the witness mentions in her

8 statement that she received information that Nenad Remistar was held in

9 KLA custody. Witness 68's family owns two houses and land in Kosovo and

10 would like to return there to live. The parties have agreed that there is

11 an unstable security situation in Kosovo which is particularly

12 unfavourable to witnesses who appear before the Tribunal. The family of

13 Witness 42 in the tentative order of testimony received repetitively

14 threatening phone calls from Albanian-speaking persons between 2001 and

15 2006, the latest calls in April 2006, just before the witness was supposed

16 to give a statement to the Prosecution. This means that the first part of

17 the test is met.

18 The Chamber further grants Witness 68 and Witness 42 protective

19 measures of a pseudonym. It instructs the Registrar to assign pseudonym

20 numbers to Witness 68 and Witness 42 in the tentative order of testimony

21 and further orders that the un-redacted statements are admitted under seal

22 and the redacted statements are admitted publicly.

23 And this concludes the Chamber's decision.

24 I will now move to admission of exhibits introduced through

25 Witness 69. The redacted 92 ter statement of Witness 69, that is, 65 ter

Page 10918

1 number 1720, should be assigned an exhibit number.

2 Mr. Registrar.

3 THE REGISTRAR: Your Honours, that will be P1231.

4 JUDGE ORIE: The Chamber has decided that P1231 is admitted into

5 evidence.

6 The Chamber is still considering whether or not to admit all or

7 some of the attachments. If attachments would not be admitted, then the

8 Chamber, of course, will consider what should be the consequences for

9 those portions of P1231 in which the witness refers to the attachments.

10 Of course, the Chamber will have to consider what remains as a basis for

11 the testimony of the witness in respect of those portions of his 92 ter

12 statement.

13 Then I move on in relation to the same witness to P1181. The

14 registrar is invited to replace the current content of P1181 with the set

15 of documents contained in 65 ter number 2173. This is not a decision on

16 admission of P1181. It's just that the content is now replaced and a

17 decision on admission of P1181 will follow in writing.

18 I now move on to Witness 28. No.

19 [Trial Chamber confers]

20 JUDGE ORIE: Where I said I would move to Witness 28, I made a

21 mistake, since I would first want to deliver a decision on the

22 Prosecution's motion to admit evidence under Rule 92 quater.

23 It is the Chamber's decision on the Prosecution's motion to admit

24 evidence under Rule 92 quater, which was filed on the 5th of November,

25 2007.

Page 10919

1 The Prosecution's motion concerns one of the witnesses who was

2 added to the Prosecution's witness list following the Chamber's decision

3 to amend the indictment, the Third Amended Indictment, on the 15th of

4 October, 2007. On the 16th of October, 2007, the Prosecution sought to

5 have the statement of this witness admitted pursuant to Rule 92 bis. When

6 the presiding officer appointed by the Registrar attempted to obtain the

7 necessary attestation, the witness refused. According to the

8 Prosecution's motion, the witness stated on this occasion that he did not

9 want to sign anything and that he would not go to The Hague unless he was

10 forced to do so.

11 The Prosecution has based its Rule 92 quater application on the

12 witness's medical condition and the fact that the witness is of advanced

13 age. The medical certificate accompanying the Prosecution's motion

14 indicates that the witness suffers from physical and mental ailments,

15 without further specifics, and that the witness has been under continuous

16 medical treatments since 1999.

17 The Defence for the three accused responded on the 8th, the 13th,

18 and the 14th of November, 2007 that the Prosecution's motion should be

19 denied.

20 MR. RE: I'm sorry. I'm loathe to interrupt. Has the Trial

21 Chamber received the medical report which we filed today in which -- which

22 was dated yesterday, which the doctor has specified in detail what the

23 condition actually is?

24 JUDGE ORIE: No, but --

25 MR. RE: I filed that --

Page 10920

1 JUDGE ORIE: Perhaps that -- yes.

2 MR. RE: We filed that several hours ago. I don't think -- I'm

3 told a courtesy copy wasn't distributed. That actually explains the

4 witness's medical problem, which -- could I ask the Trial Chamber to visit

5 that before -- respectfully, before --

6 JUDGE ORIE: We'll -- I'll interrupt --

7 MR. RE: Thank you.

8 JUDGE ORIE: -- the delivery of a decision. Nevertheless, Mr. Re,

9 I -- you said, "I was told a courtesy copy wasn't distributed." That

10 means that you require the Chamber to further consider its decision

11 without even telling the Chamber at that time that new information was

12 available which might have assisted us in organising our work.

13 MR. RE: Of course. But I'm -- I apologise. I didn't know you

14 were about to deliver --

15 JUDGE ORIE: Well, I didn't hear any apology until now.

16 MR. RE: Well, I'm just about to apologise.


18 MR. RE: We -- I wasn't aware that the Trial Chamber hadn't

19 received it. I can tell you in private session what the information is.

20 I asked --

21 JUDGE ORIE: Let's read it during the first break.

22 MR. RE: Okay.

23 JUDGE ORIE: I take it it was oversight?

24 MR. RE: Complete oversight.


Page 10921

1 MR. RE: I thought it had been filed hours before. I'm just being

2 told it was filed at 1.10. I thought it had been filed about four hours

3 ago and provided to you. I apologise for that.

4 JUDGE ORIE: Insight sometimes works better than oversight.

5 I'll move on and now deal with Witness 28. And I'd first like to

6 deliver the Chamber's decision on the Prosecution's submission to admit

7 into evidence a Human Rights Watch report through Witness 28. That is,

8 therefore, a decision on admission of the Human Rights Watch report of

9 October 1998 entitled "Humanitarian Law Violations in Kosovo."

10 On the 12th of November, 2007, the Prosecution filed a motion

11 requesting the admission of the entire report into evidence or, in the

12 alternative, the admission of certain passages of the report. On the

13 15th, the 16th, and the 19th of November, 2007, the Defence for the three

14 accused filed submissions opposing the admission of any parts of the

15 report into evidence.

16 As far as the report contains conclusions rather than provides

17 facts, accepting this opinion evidence would encroach upon the Chamber's

18 duty to draw inferences from facts. According to the Chamber, the

19 following passages which the Prosecution found particularly relevant fall

20 into the mentioned category: The opinion that the KLA committed serious

21 violations of humanitarian law mentioned on the pages 3 to 7 of the

22 report's summary; and on page 75 of Chapter 10, and the opinion stated in

23 Chapter 11 of the report that by the end of February 1998, the conflict

24 had reached a level of intensity sufficient to trigger the obligations of

25 Common Article 3 of the Geneva Conventions. These parts are, in the

Page 10922

1 Chamber's view, not suitable for admission.

2 The Chamber also observes that many facts provided by the report

3 are unsourced or are based on media reports or compilations of other human

4 rights groups, thus consisting of multiple hearsay. Where there are

5 references to eyewitnesses, they are often not named.

6 Moreover, some of the factual information contained in the report

7 merely repeats better evidence that already is before the Chamber. This

8 is the case for the information relating to the conflict between the KLA

9 and the Serb forces from January 1998 onwards --

10 [French interpretation on the English Channel]

11 JUDGE ORIE: This was French interpretation on the English

12 Channel. I resume my last line.

13 This is the case for the information relating to the conflict

14 between the KLA and the Serb forces from January 1998 onwards, including

15 the Serb attack on Likosane, contained in Chapter 3 of the report. This

16 also applies to information about the disappearance of the persons named

17 on pages 83 and 84 of Chapter 10 of the report.

18 A large part of the report contains accounts of alleged crimes

19 committed by Serb authorities against Kosovo Albanian civilians during

20 1998. The Chamber finds this repetitive to evidence that is already

21 before the Chamber, may it be in a less detailed form. The relevance of

22 this kind of information is such that there is no need for the Chamber to

23 be provided with the detailed accounts of the report in order to be able

24 to determine the matters before it.

25 Chapter 10 of the report describes attacks against, and abductions

Page 10923

1 of, ethnic Serbs, Roma, and Kosovo Albanians allegedly committed by the

2 KLA. Lack of specificity and vagueness in relation to the gathering and

3 processing of data underlying the overall numbers given prevent the

4 Chamber from accepting this material for the purpose of drawing

5 conclusions. This is the case in terms of the numbers of abducted Serbs

6 provided by the report on page 75, as well as in terms of the numbers of

7 attacked, injured, and killed Albanians provided by the Serbian Ministry

8 of Internal Affairs cited by the report on page 75.

9 As for the 14 incidents mentioned in this chapter where Serb,

10 Roma, and Kosovar Albanians were attacked or abducted, many are not within

11 the geographical scope of the indictment. For others, the report lacks

12 information as to who the perpetrator was, or the information provided is

13 a combination of multiple hearsay and lack of identified sources, so that

14 it is of no assistance to the Chamber. As indicated before, for some of

15 the incidents, the Chamber already has -- has better evidence, in the form

16 of testimony of viva voce witnesses.

17 For all the foregoing reasons, and pursuant to Rule 89(C), the

18 Chamber denies admission into evidence of the Human Rights Watch report in

19 its entirety.

20 And this concludes the Chamber's decision.

21 [Trial Chamber confers]

22 JUDGE ORIE: I'm now moving to another set of exhibits in relation

23 to Witness 28. Before doing so, Mr. Guy-Smith, has the Chamber

24 interpreted the messages it received in relation to D195 through D202

25 correctly, if you do not press the admission of these documents?

Page 10924

1 MR. GUY-SMITH: That is correct.

2 JUDGE ORIE: Thank you.

3 Then, Mr. Troop, I do understand that the Brahimaj Defence still

4 presses admission of D203.

5 MR. TROOP: That's correct, Your Honour.

6 JUDGE ORIE: I think that the position of the Brahimaj Defence in

7 respect of D203 was further explained in -- in an e-mail sent by

8 Mr. Harvey to one of the legal officers of the Chamber dated the 15th of

9 November of 2007.

10 MR. TROOP: Yes.

11 JUDGE ORIE: The Chamber has taken this into consideration. The

12 Chamber has decided not to admit D203. But I would like to add one or two

13 words to it.

14 The Chamber is fully aware that the admission of D203 is a

15 delicate and sensitive matter, because in that report the death of the

16 mother and the grandmother of Mr. Brahimaj is described.

17 Non-admission of D203 is totally unrelated to what the Chamber

18 would be considered a -- an event which, of course, has had a huge impact

19 on the son and the grandson of the deceased. It is exclusively on the

20 basis of the procedural standards the Chamber has set that D203, which

21 contains quite a lot of information, apart from the information I just

22 described -- it's these procedural -- procedural standards which have led

23 the Chamber to a decision to deny admission. The Chamber, at the same

24 time, does not ignore what it means for someone to lose his mother and his

25 grandmother.

Page 10925

1 I then move on. I now move on to a decision on the admission into

2 evidence of P1199, which was tendered through the witness

3 Radomir Gojkovic.

4 On the 31st of October, 2007, Exhibit P1199 was tendered as part

5 of a series of exhibits relating to witness Radomir Gojkovic's 92 ter

6 statement. The Defence pointed out that one of the documents contained in

7 P1199 had already been tendered through Witness 69 and was subject to an

8 objection by the Defence. The remainder of P1199 is comprised of two

9 court-related documents: One being the authorisation of an investigation

10 into alleged activities of Ramush Haradinaj and others by the District

11 Court of Pec; and the other being a criminal police report to the Public

12 Prosecutor of Pec relating to the investigation carried out by witness

13 Radomir Gojkovic. The Defence has not objected to their admission. The

14 Chamber considers these two documents to be both relevant and of probative

15 value. The Chamber therefore decides to admit P1199 into evidence, apart

16 from the document marked ERN U009-6873, which will be dealt with along

17 with the other exhibits tendered through Witness 69.

18 The Registrar is therefore instructed to remove the previously

19 mentioned ERN number and the Chamber admits the remainder of P1199 into

20 evidence.

21 [Trial Chamber confers]

22 JUDGE ORIE: Then I move on and will deliver oral decisions on

23 admission of a series of documents marked for identification D170 through

24 D177.

25 I first deal with D174, D175, and D177. These are witness

Page 10926

1 statements given to the Prosecution. Such statements should be tendered

2 through Rule 92 bis or 92 ter or 92 quater and cannot be admitted through

3 witness Stijovic.

4 The Chamber has decided not to admit D174, D175, and D177.

5 D176 is a witness statement given to the Defence. It falls into

6 the category I just mentioned since it is a statement taken for the

7 purposes of the legal proceedings before this Tribunal. For those

8 reasons, the Trial Chamber does not admit D176 into evidence.

9 I now come to D170, D171, and D172. These documents, one being a

10 report from the commander of the VJ 3rd Army to the VJ Supreme Command

11 Staff; another one, a statement given by Radomir Markovic to the Serbian

12 MUP; and a third to be a report from the Serbian MUP dealing with the

13 so-called refrigerator truck case. Portions of these documents have been

14 put to witness Stijovic, and therefore those portions are on the record.

15 It has not been demonstrated that the remaining portions not put to the

16 witnesses -- witness and therefore not yet on the record -- it has not

17 been demonstrated that their relevance and probative value are of a level

18 which would justify admission into evidence, and therefore D170, D171, and

19 D172 are not admitted into evidence.

20 I now come to D173. The Chamber admits D173 into evidence because

21 the Chamber has considered that there are sufficiently relevant enough

22 probative value so as to justify admission into evidence.

23 I now move on to the documents marked for identification D220,

24 D221, and D222.

25 First of all, I would like to ask -- ask the registrar to replace

Page 10927

1 the content of D222 with the content of document ID 2D001862, which is a

2 complete version of the document the Defence intended to tender.

3 I immediately add to that that the Chamber denies admission of

4 D220 on the basis that -- let me just start my sentence again, because I

5 may have given the impression that the replacement of D222 was followed by

6 a decision of its admission. However, the decision on admission, at least

7 this first decision on admission, deals with D220.

8 The admission of D220 is denied. The transcript sufficiently

9 reflects the relevant portions of D222 that were put to the witness;

10 whereas, the remainder of the document does not qualify for admission.

11 I now come to D221 and D222. The Chamber notes that there is no

12 translation into English of these two documents.

13 Mr. Guy-Smith, the Chamber asked itself whether it could still

14 expect such a translation and/or whether you would press tendering D221

15 and D222, where the witness, I think, testified that he had not read these

16 newspaper articles and where one could wonder whether there is dispute

17 among the parties about the public attention the broadcasting the Balaj

18 trial may have -- the attention the Balaj trial may have received at the

19 time.

20 MR. GUY-SMITH: I am in the process of having the article

21 translated. Once translation is completed, which I believe will be by the

22 end of today, I will reconsider my position. And with the Chamber's

23 indulgence, will inform the Chamber tomorrow whether I will continue

24 pressing the admission of these two exhibits based upon what the Chamber

25 has just indicated.

Page 10928


2 MR. GUY-SMITH: If that is not inconvenient.

3 JUDGE ORIE: Well --

4 MR. GUY-SMITH: Then I understand --

5 JUDGE ORIE: The Chamber is --

6 MR. GUY-SMITH: I understand. I understand.

7 JUDGE ORIE: -- trying to get a clean desk as well.

8 And therefore, Mr. Re, I'm approaching you. Would there be a

9 great dispute about whether the -- the Dukagjini Trial of -- against

10 Mr. Balaj would have received a lot of media attention at the time?

11 Because that remains, as far as I understand, since the witness testified

12 that he had not read.

13 MR. GUY-SMITH: He was aware of the -- he was aware of the

14 attention but had not read those particular articles. That is true.

15 JUDGE ORIE: Yes. Apart from how relevant that exactly is that

16 someone is aware that there's some media attention -- but, okay.

17 Mr. Re, is there any dispute about wide -- a large media attention

18 for the Balaj Dukagjini Trial at the time? It -- it's -- it appears a

19 relatively marginal matter in the way it was introduced here.

20 MR. RE: I -- I just can't answer that. I don't know how much

21 publicity the trial got in Kosovo, whether it was on the radio, TV, the

22 papers -- I've got no idea. I can certainly make inquiries of people who

23 were in Kosovo at the time. Maybe our field office could help us with the

24 publicity given. But I -- I can't answer that standing here. I would

25 have to make inquiries.

Page 10929

1 I -- I do accept, of course, there was some publicity.

2 Mr. Guy-Smith has -- has provided evidence of some publicity. But the

3 extent of it is a different issue.

4 JUDGE ORIE: Well, now, Mr. -- Mr. Guy-Smith, apart from any other

5 evidence that would -- that we would receive or have already received,

6 what we see now is two newspaper articles, not full-page, relatively

7 limited. Is there any possibility -- I mean, if you want us to draw

8 inferences from this is part of a -- a huge media attention, which might

9 well be the case but might not be the case -- these two newspaper articles

10 as such do not say more than that they appeared and they paid attention to

11 the trial.

12 Mr. Re, would you -- would there be any dispute that at least two

13 local newspapers published on the matter with publications covering, I

14 would say, approximately one-eighth of a newspaper page, ordinary

15 newspaper page, including -- and, Mr. Guy-Smith, help me out. Was there a

16 photo on one or both of the newspaper articles of Mr. Balaj?

17 MR. GUY-SMITH: Of the articles thus far presented, there was a

18 photo on -- on one.

19 JUDGE ORIE: Yes, that's --

20 MR. GUY-SMITH: And there was his name in --

21 JUDGE ORIE: Yes, "Toger" and "Togeri" mentioned in relation to

22 Balaj.

23 MR. GUY-SMITH: Right, on the other.

24 JUDGE ORIE: Mr. -- Mr. Re, in -- in the absence of any English

25 translation, of course, we'll have difficulties to have it admitted into

Page 10930

1 evidence.

2 The facts I just mentioned, that is, in two newspaper articles --

3 in two newspapers articles were published of, if I could say, limited

4 size - certainly not more than one/eighth of a newspaper article page -

5 one of them including a photograph of Mr. Balaj, another one even without

6 translation I could notice that close to where the word "Balaj" was used

7 the word "Toger" or "Togeri" was used. Would that be in dispute?

8 MR. RE: The contents of those newspapers, the publication --

9 JUDGE ORIE: I set it out now.

10 MR. RE: No, that's not in dispute. But I can't take it any

11 further at this second.

12 JUDGE ORIE: Okay. Mr. Guy-Smith, to have these two documents in

13 evidence -- and it's not disputed that it relates to the -- to the trial,

14 Mr. Re. Is that correctly understood?

15 MR. RE: I -- I'm accepting Mr. Guy-Smith's --

16 JUDGE ORIE: Okay.

17 MR. RE: -- undertaking --


19 MR. RE: -- representation that it does.


21 MR. RE: I've got no reason to disbelieve him.


23 Mr. Guy-Smith, of course now the remaining question is: What

24 would it add to have the articles further translated and to have them into

25 evidence, whereas the basic information the articles give and which you,

Page 10931

1 from what I understand, need to establish wide media attention seems to be

2 not in dispute?

3 MR. GUY-SMITH: I do not believe that the translation of the

4 article itself will give any further information which will be

5 particularly of help to the Chamber's analysis. I -- I do believe,

6 obviously - and I think the Chamber knows precisely why I'm interested in

7 one having in the record a photograph that shows my client displayed.

8 JUDGE ORIE: Yes. And that's not in dispute any more.

9 MR. GUY-SMITH: Right.

10 JUDGE ORIE: Mr. Re, I think, agreed to that.

11 MR. GUY-SMITH: And the association between the two names. Those

12 two matters are not in dispute, then I don't see necessarily at this point

13 in time the need to press it any further.


15 MR. GUY-SMITH: My only concern is whether or not there's -- at

16 some point in time somebody is -- may need to refer to those two facts.

17 By that I mean looking at a picture or seeing the two names together.

18 And it may be --

19 JUDGE ORIE: Yes. If in future someone may testify that he has

20 read this, or whatever, then, of course, vacating at this moment D203 is

21 not a decision which would be valid for eternity.

22 MR. GUY-SMITH: If it's not valid for eternity, then I'm

23 satisfied. Thank you.

24 JUDGE ORIE: Yes. That means that --

25 Let me just confer with my colleagues.

Page 10932

1 [Trial Chamber confers]

2 JUDGE ORIE: The Chamber has decided that D203 will be vacated and

3 that apart from the context in which such an application would be made, by

4 that -- as such vacating D203, has no prejudicial effect on any future

5 application -- I don't know. You never know what happens. Of course, not

6 this week, not by the Prosecution but -- because the Prosecution is

7 supposed not to -- at this moment to introduce through a motion any

8 further evidence. But therefore D203 is now vacated.

9 MR. EMMERSON: Could I -- could I just rise very briefly.


11 MR. EMMERSON: Just to check that the Trial Chamber intended to

12 refer to D203.

13 JUDGE ORIE: Yes. I'm making a mistake, as a matter of fact,

14 because we are talking about D221 and D222. I apologise for that, because

15 I was, as a matter of fact, referring to D203 on which we ruled already.

16 And that was the decision where the Brahimaj Defence pressed the admission

17 of D203.

18 So what I just said about D203 actually refers to the two

19 newspaper articles, which we find under D221 and D222.

20 Therefore, Mr. Registrar --

21 MR. GUY-SMITH: Understood.

22 JUDGE ORIE: -- D203 was already -- the status was changed already

23 to "not admitted," and the vacation should be in relation to D221 and

24 D222.

25 I apologise for the mistake.

Page 10933

1 The next matter I would like to raise -- yes.

2 [Trial Chamber confers]

3 [Trial Chamber and legal officer confer]

4 JUDGE ORIE: Then finally, the Chamber will have to decide on the

5 Prosecution's application to hear the testimony of Witness 30 by

6 videolink. Today the Chamber received a response to that motion filed by

7 the Haradinaj Defence. I am not aware at this moment whether any --

8 MR. GUY-SMITH: We joined.

9 JUDGE ORIE: You joined.

10 Mr. Troop.

11 MR. TROOP: Yes, a joinder was filed on behalf of the Brahimaj

12 team as well prior to 12.00.


14 MR. GUY-SMITH: If it is of any assistance, it was at

15 approximately 11.13 this morning.

16 11.19.

17 JUDGE ORIE: Yes. I meanwhile have seen the -- I had seen already

18 the Haradinaj response. I have now in front of me Idriz Balaj joinder. I

19 have not yet in front of me -- oh, yes, Brahimaj. I also see that. Yes.

20 Yes.

21 [Trial Chamber confers]

22 JUDGE ORIE: No, I'm -- I'm specifically looking at the joinder

23 filings to see whether anything is added to the Haradinaj filing, and I

24 see that --

25 MR. GUY-SMITH: If it's of any help, we added nothing.

Page 10934

1 JUDGE ORIE: You didn't add anything at all.

2 Why was this important? Because if there would be -- have been

3 added anything, the Chamber might have found this a reason to reconsider a

4 decision which we prepared on the basis of -- on the basis of the filing

5 by the Haradinaj Defence.

6 [Trial Chamber and legal officer confer]

7 JUDGE ORIE: The Chamber will deliver a decision today but will

8 not do that before the break.

9 Then, Mr. Registrar, is there already any information about the

10 availability of the witness on the location of the videolink?

11 [Trial Chamber and registrar confer]

12 JUDGE ORIE: In order to further prepare for the videolink, we'll

13 have a break a bit longer than we usually have, and we'll resume at

14 quarter past 4.00

15 --- Recess taken at 3.37 p.m.

16 --- On resuming at 4.47 p.m.

17 JUDGE ORIE: We resume the hearing in the case against Haradinaj

18 and others.

19 The first thing I'd like to do is to establish whether the

20 videolink is functioning. Can you hear me and can you see me at the

21 location?

22 THE REGISTRAR: [Via videolink] Yes, Your Honour, we can.

23 JUDGE ORIE: Thank you. And I suggest that everyone present in

24 the room of the videolink introduces himself.

25 I -- I think as the representative of the Registry we recognise on

Page 10935

1 our screen Evelyn Anoya.

2 Could you invite the other persons to introduce themselves.

3 MR. DAVIDSON: [Via videolink] My name is Paul Davidson. I work

4 for the Federal Public Defenders office in the Federal Court in the

5 Southern District of New York in the United States. And I was appointed

6 by the Court -- by the Court here in New York yesterday to represent Mr.

7 Kabashi in connection with possible contempt proceedings here in the

8 Southern District of New York.

9 JUDGE ORIE: Yes. That is clear.

10 You may be aware that in view of -- no, but let me first continue

11 and ask all the others to introduce themselves.

12 Mr. Davidson, right to you is sitting?

13 MR. TARLOW: [Via videolink] Thank you, Judge. It's

14 Richard Tarlow, Assistant United States attorney for the Southern District

15 of New York and I represent the United States of America.

16 JUDGE ORIE: Thank you, Mr. Tarlow.

17 And in the middle, you are Mr. Kabashi?

18 THE WITNESS: [Interpretation] Yes, it's me.

19 JUDGE ORIE: Now, interpreters, are there any interpreters present

20 at the location of the videolink?

21 THE REGISTRAR: [Via videolink] No, Your Honour.

22 JUDGE ORIE: Then the services of CLSS in The Hague are used.

23 Perhaps it would be good to clearly explain to Mr. Kabashi in what

24 procedural situation we find ourselves at this moment. And that is we are

25 in a court hearing which is part of the trial against three accused:

Page 10936

1 Mr. Haradinaj, Mr. Balaj, and Mr. Brahimaj.

2 And I'd like, just for your information, I'd like Mr. Kabashi,

3 that you are aware of who are in this courtroom.

4 The Prosecution is represented by Mr. Re. I don't know whether

5 you can see him at this moment.

6 THE WITNESS: [Interpretation] Yes, I can.

7 JUDGE ORIE: Then as lead counsel of Mr. Haradinaj, Mr. Emmerson

8 is present.

9 As lead counsel for Mr. Balaj, Mr. Guy-Smith is present. And as

10 counsel for Mr. Brahimaj, Mr. Troop is present.

11 It is important for you to know, Mr. Kabashi, that although you

12 have been indicted for contempt in this Tribunal, that at this moment we

13 are not hearing your contempt case, but we, the Chamber, would like to

14 hear the evidence you would give in the case against the accused in The

15 Hague.

16 And before you give evidence, you are required to make a solemn

17 declaration that you will speak the truth, the whole truth, and nothing

18 but the truth.

19 Could the representative of the Registry hand out to Mr. Kabashi

20 the text of the solemn declaration and --

21 [Trial Chamber and registrar confer]

22 MR. Davidson: [Via videolink] Your Honour, I should perhaps short

23 circuit this by clarifying that -- that Mr. Kabashi is not prepared to

24 testify today and -- and does not intend to give evidence in this

25 proceeding today. That's without prejudice to any decision he may make in

Page 10937

1 the future after consulting with counsel about his situation.

2 JUDGE ORIE: Yes. Mr. Kabashi, are you -- where I asked you to

3 make a solemn declaration, are you refusing to make a solemn declaration?

4 THE WITNESS: [Interpretation] No, I'm not refusing. I don't need

5 to give a solemn declaration, because I am not here to testify. That's

6 the reason why my counsel will represent me.

7 JUDGE ORIE: Now, Mr. Kabashi, unfortunately your counsel cannot

8 replace you as a witness. Therefore, I invite you to make the solemn

9 declaration, because only after the solemn declaration has been given by

10 you, questions can be put by us. And we then will find out whether or not

11 you are failing or refusing to answer questions. So therefore, I invite

12 you again to make a solemn declaration that you will speak the truth, the

13 whole truth, and nothing but truth.

14 MR. Davidson: [Via videolink] Once again, Mr. Kabashi has

15 decided, after consultation with counsel, not to give evidence today.

16 JUDGE ORIE: Yes. Then we'd like to hear that from Mr. Kabashi,

17 rather than from counsel, because he is not represented. He is a witness.

18 And although you may represent him in any concept proceedings,

19 representation of a witness is not something known before this Tribunal.

20 Of course, representation of accused persons is something well-known here.

21 That means that counsel speak for an accused. However, Mr. Kabashi at

22 this moment does not appear as an accused but appears as someone who has

23 been called to testify as a witness.

24 So therefore, if Mr. Kabashi doesn't want to testify, we'd like to

25 hear from him.

Page 10938

1 And the first step is that invited to make a solemn declaration,

2 that we'll observe what he does. Does he make that solemn declaration?

3 If he does not make that solemn declaration, we'll see.

4 Mr. Kabashi, you are invited for the third time now by me to make

5 the solemn declaration.

6 And, Mr. Kabashi, if you don't want to do that, please tell me.

7 THE REGISTRAR: [Via videolink] One moment, Your Honour. We're

8 just hearing the translation.


10 Yes. Mr. -- Mr. Kabashi, I invited you to make a solemn

11 declaration. Would you please make that solemn declaration, the text of

12 which Ms. Anoya will be handed out to the witness. Or if you don't have

13 it available, I'll speak the words and ask Mr. Kabashi to repeat them.

14 THE REGISTRAR: [Via videolink] If you could assist, Your Honour,

15 please.


17 Mr. Kabashi, I invite you to repeat the following words: "I

18 solemnly declare."

19 THE WITNESS: [Interpretation] I solemnly declare.

20 JUDGE ORIE: "That I will speak the truth."

21 THE WITNESS: [Interpretation] That I will speak the truth.

22 JUDGE ORIE: "The whole truth, and nothing but the truth."

23 THE WITNESS: [Interpretation] The whole truth, and nothing but the

24 truth.

25 JUDGE ORIE: Thank you. Please be seated, Mr. Kabashi.

Page 10939


2 [Witness answered through interpreter]

3 [Witness testified via videolink]

4 JUDGE ORIE: Mr. Kabashi, I now give an opportunity to Mr. Re, who

5 is counsel for the Prosecution, to examine you.

6 Mr. Re, you may proceed.

7 Examination by Mr. Re:

8 Q. Good afternoon, Mr. Kabashi. Is your name Shefqet Kabashi and

9 were you born on the 1st of July, 1976 in Zahac in Peja, in Kosovo?

10 JUDGE ORIE: Mr. Kabashi, would you please answer that question.

11 THE WITNESS: I just answered that. I said "yes."

12 JUDGE ORIE: Oh, that was not translated.

13 THE INTERPRETER: It was not heard.

14 JUDGE ORIE: It was not heard and not translated.

15 Please proceed, Mr. Re.

16 MR. RE:

17 Q. And are you an ethnic Kosovar Albanian and a Muslim by religion?

18 A. I am Albanian, an ethnic Albanian, and without any religion. And

19 as Albanian that I am, I have told you that you are destroying the lives

20 of people in my country.

21 JUDGE ORIE: Yes. Would you please -- would you please answer the

22 questions and refrain from commenting on anything else.

23 Please proceed, Mr. Re.

24 MR. RE:

25 Q. And your -- your occupation -- your occupation. Did you work for

Page 10940

1 the KPS in Kosovo?

2 A. [In English] I'm sorry. [Interpretation] I am not in a position

3 to testify to such a Tribunal. I am not prepared to do that.

4 Q. All right. Mr. -- Mr. Kabashi -- Mr. Kabashi, I want to ask you

5 some questions. I'm not going to ask you anything about the contempt

6 proceedings. Do you understand that?

7 A. I am not prepared to speak before this Tribunal.

8 Q. Mr. Kabashi, I'm not going to ask you anything about the contempt

9 proceedings. Do you understand that?

10 A. Irrespective of what you are going to ask me, I know that you are

11 the one who has indicted me.

12 Q. No, it's the Trial Chamber which has indicted you, not me.

13 JUDGE ORIE: Mr. Kabashi. Mr. Kabashi, it was the Trial Chamber

14 that issued the order of an indictment, and it was not the Office of the

15 Prosecution.

16 Mr. Kabashi, a question was put to you which was the following

17 question. The question was: Did you work for the KPS in Kosovo? You

18 have not answered that question. Do you refuse to answer that question?

19 A. I said that from what I know of your legislation, I know that the

20 Prosecutor has indicted me and that the Trial Chamber has accepted that.

21 With respect to questions -- to the questions you are putting me, it's not

22 that I don't want to answer them but I am not in a position to speak

23 before you. I want my counsel to -- to represent me. I cannot really

24 speak.

25 JUDGE ORIE: Mr. Kabashi, I again put to you the question that was

Page 10941

1 formulated by Mr. Re, that is, whether you worked for the KPS in Kosovo.

2 And I urge you to answer that question.

3 MR. Davidson: [Via videolink] Your Honour, this is Paul Davidson,

4 once again. With all respect, Mr. Kabashi has indicated that he's not

5 prepared to testify today. And I think he will persist in that decision

6 here this morning.

7 JUDGE ORIE: Yes. Then if Mr. Kabashi tells me that he does not

8 answer the question that was just put to him and he will not answer any

9 other question, then we might finish soon.

10 Yes, Mr. Re.

11 MR. RE: Your Honour, there may -- there may well be a solution

12 here. I'm not sure that Mr. Davidson, with -- with due respect to him and

13 his position, is fully aware of the proceedings or the procedure here. It

14 could well be, if you allow us a short adjournment in the presence of

15 Mr. Karnavas to speak to Mr. Davidson. Mr. Di Fazio had a brief

16 conversation with him before. I could speak to Mr. Davidson with

17 Mr. Karnavas and we could discuss the procedures and what might happen if

18 Mr. Kabashi testifies or doesn't testify.

19 My submission is if we adjourn now for a few moments, we may be

20 able to resolve this matter without it descending into a farce.

21 [Trial Chamber confers]

22 JUDGE ORIE: There is a suggestion made by Mr. Re.

23 Any objection by the Defence?

24 MR. EMMERSON: I -- I'm assuming that the invitation is extended

25 to Defence counsel? To be present.

Page 10942

1 JUDGE ORIE: To be present? During?

2 MR. EMMERSON: Any discussions that take place at this stage

3 between representatives of the witness and representatives of the

4 Prosecution.

5 JUDGE ORIE: Mr. Guy-Smith.

6 MR. GUY-SMITH: Yes. I was going to ask the same question.

7 JUDGE ORIE: Mr. Re, the issue might be that the witness, once

8 already started to give testimony, although not for a very long time, and

9 therefore the question is to what extent you're free to speak with the

10 witness and counsel any more. Of course, Mr. Karnavas could speak, I take

11 it, without Defence counsel being present with Mr. Kabashi and Mr.

12 Davidson.

13 MR. GUY-SMITH: Well, I'm -- procedurally I'm unclear about a

14 couple of things, so I'm not sure how -- how to respond to the answering

15 of that question. I understand that Mr. Davidson is his attorney in the

16 United States and protecting therefore whatever interests he may have in

17 the United States with regard to a certain number of issues. And I'm not

18 clear as to precisely where we stand right now in that regard.

19 Mr. Karnavas' advice -- if Mr. Karnavas and Mr. Davidson and

20 Mr. Kabashi are planning on having a conversation, meaning that those

21 attorneys who are representing his interests, are going to speak to him,

22 that's one matter. But if there's going to be the involvement of the

23 Prosecution at this time by virtue of the fact that the oath has been

24 taken, I think it's incumbent upon the proceedings for all parties to be

25 present.

Page 10943

1 [Trial Chamber confers]

2 JUDGE ORIE: The Chamber has considered it.

3 Mr. Re, the Chamber can imagine two different scenarios. The one

4 is that Mr. Kabashi speaks with Mr. Karnavas and you in the presence of

5 the Defence counsel, or that Mr. Karnavas and Mr. Davidson speak with

6 Mr. Kabashi and further advise him on his present situation.

7 My understanding is that Mr. Davidson, as a public defender, was

8 assigned to defend the interests of Mr. Kabashi in view of a legal

9 position, which could easily amount to contempt of court. And I do

10 understand that due to the unfamiliarity of Mr. Davidson with ICTY law,

11 which, of course,-- well, let's say different -- differently. We would be

12 surprised if he was fully acquainted with every detail of ICTY law; that

13 for those reasons the Registry in The Hague has assigned Mr. Karnavas to

14 assist in defending the interests of Mr. Kabashi under the present

15 circumstances.

16 If I am misinformed, I'd like to know at this moment.

17 MR. RE: About what? I mean, I understand Mr. Davidson's

18 representing him. That's not what I'm asking for. I'm -- my submission

19 is I do not believe that Mr. Davidson is aware of the procedures here:

20 Contempt charges, how they operate, who has filed them, what the

21 procedures are in relation to international arrest warrants, for example,

22 traveling outside the United States once a warrant has been issued.

23 JUDGE ORIE: Well, I take it, Mr. Re, that Mr. Karnavas

24 specifically for those purposes is assigned in order to complement the --

25 the knowledge and the skills of Mr. Davidson.

Page 10944

1 MR. RE: My -- I am anxious to ensure that the interests of

2 justice are served and Mr. -- Mr. Kabashi testifies and provides the

3 valuable evidence which should be heard by the Tribunal. The Defence are

4 very anxious that Mr. Kabashi doesn't testify.


6 MR. RE: I wish to speak to Mr. Davidson in Mr. Karnavas' presence

7 to explain the procedures to Mr. Davidson. I would also explain to him

8 how two people were indicted for contempt last week and the charges of the

9 contempt were withdrawn --

10 JUDGE ORIE: Mr. --

11 MR. RE: -- after the person testified.

12 JUDGE ORIE: Mr. Guy-Smith.

13 MR. GUY-SMITH: Yes. That is --

14 MR. RE: That is relevant information --

15 MR. GUY-SMITH: I think what Mr. Re is doing right now is, quite

16 frankly, improper. I want to say two things. Earlier on Mr. Re used the

17 word "farce" or the phrase "descending into a farce," which I take umbrage

18 to. Second of all, what Mr. Re just said, I take umbrage to. I don't

19 have -- as we would say in the United States, I don't have a dog in this

20 fight. This gentleman has particular rights and is going to make an

21 independent decision based upon the independent legal counsel that he

22 gets. And that's the beginning and end of it.

23 As friend to the court, as a friend to any court, whether I am

24 practicing here in The Hague or I am practicing back home in the United

25 States, I think it's important that any individual, whoever is in a

Page 10945

1 position where they have potential legal problems, especially where

2 they've been indicted, has the independent and considered advice of

3 counsel. And that is my interest as an officer of the court, no more, no

4 less.

5 JUDGE ORIE: Let's --

6 MR. RE: How could his interests be served by a lawyer in the

7 States who is does not understand the procedures --

8 JUDGE ORIE: Mr. Re --

9 MR. RE: -- and we haven't spoken to him to explain them to him?

10 JUDGE ORIE: Mr. Re, you earlier did send messages over the

11 videolink, messages of which -- which should not be sent at this moment by

12 a party who is not in a position any more to directly communicate with the

13 witness. If there is anything you think Mr. Karnavas or Mr. Davidson

14 should know, any relevant thing you consider they might have missed, may I

15 take it that Mr. Re is free to tell Mr. Karnavas and Mr. Karnavas will

16 finally decide whether or not of its -- it's of any use to --

17 MR. EMMERSON: Yes. I repeat the suggestion earlier on, though,

18 that if communications are to be made from the Prosecution, the ultimate

19 purpose of which is to communicate with the witness, then they ought to be

20 communications which are shared with the Defence.

21 MR. RE: I will communicate to the Defence whatever I've said to

22 Mr. Karnavas and Mr. Karnavas can communicate it back to the Defence.

23 JUDGE ORIE: No. No. Then --

24 MR. RE: What we don't know --

25 JUDGE ORIE: It goes more directly, Mr. Re. If there's anything

Page 10946

1 you would like to bring to the attention of Mr. Karnavas and that is

2 indirectly -- to the attention of Mr. Davidson under those circumstances,

3 of course, the communication between Mr. Kabashi and Mr. Karnavas and Mr.

4 Davidson is privileged. But if you want to bring something to the

5 attention of Mr. Karnavas and where you offer that you would tell

6 everything to the Defence, then let them be present so that they can hear

7 immediately what is communicated.

8 MR. RE: Well --

9 JUDGE ORIE: Apart from that, we're losing time.

10 MR. RE: I understand that. And that's why -- there's a point

11 here. Mr. Davidson said and has said a number of times he does not

12 want -- that Kabashi does not want to testify today. What does "today"

13 mean? Until you actually -- until someone speaks to him --

14 JUDGE ORIE: Bring this to the attention of Mr. Karnavas and

15 Mr. Davidson. And as far as Mr. Kabashi is included, I think you should

16 be excluded. And if you just speak to Mr. Karnavas and Mr. Davidson on

17 these matters, then the Defence -- where you offered to tell them in its

18 entirety what you discussed with Mr. Karnavas, the most direct way of

19 informing them about it is that they are present.

20 MR. RE: I'm very happy to speak to Mr. Karnavas and then as soon

21 as I speak to them go straight to the Defence.

22 JUDGE ORIE: No, Mr. Re.

23 MR. RE: And the two of us say what we discussed.

24 JUDGE ORIE: Mr. Re, this is not a debating club. This is a court

25 of law in which the Chamber has ruled on the communications, which may

Page 10947

1 take the 15 minutes from now on. If you want to speak with Mr. Karnavas

2 about these matters, then take care and perhaps also, Defence counsel, to

3 the extent they want to attend, take care that someone else to hear a few

4 other decisions the Chamber will deliver during these 15 minutes.

5 Therefore, I -- everyone who wants to leave the courtroom at this

6 moment is excused. We will suspend the videolink for 15 minutes. We'll

7 continue the hearing in The Hague. If there are any communications at

8 this moment, Mr. --

9 Let me just see.

10 Mr. Davidson and Mr. Karnavas, you -- you are, of course -- it

11 goes without saying. You're free to communicate with Mr. Kabashi

12 however -- however, Mr. Re can communicate with Mr. Karnavas and

13 Mr. Davidson, not directly with Mr. Kabashi.

14 Mr. Troop -- let's first finish this.

15 Is this understood?

16 And Mr. Tarlow -- I -- this Chamber ruled on ways of

17 communication. If there's anything you would like to bring to our

18 attention because it might be relevant under your domestic law, you have

19 an opportunity to do so. If not, we'll just suspend the videolink.

20 MR. TARLOW: [Via videolink] I think I just want to make sure that

21 I understand where things stand. It's my understanding that Mr. Davidson

22 and Mr. Karnavas may now speak to Mr. Re but it must also be in the

23 presence of Defence counsel?

24 JUDGE ORIE: Yes, that's the situation. And, of course,

25 Mr. Karnavas and Mr. Davidson can speak to each other as they wish, even

Page 10948

1 if -- even if Mr. Kabashi, of course, would be present or would listen to

2 it -- their conversation or even participate in their conversation. But

3 whenever the Prosecution in The Hague is involved in such a conversation,

4 it should be in the absence of Mr. Kabashi and in the presence of the --

5 The Hague Defence.

6 UNIDENTIFIED SPEAKER: Okay. But certainly there's nothing to

7 prevent Mr. Kabashi from speaking with Mr. Davidson and/or Mr. Karnavas in

8 privacy.

9 JUDGE ORIE: No, there's no objection against that in whatever

10 way.

11 I take it that he would then receive advice on his present legal

12 situation.

13 THE REGISTRAR: [Via videolink] Any objections?

14 MR. Davidson: [Via videolink] No objection. I'm here. I'll wait

15 for a call from anyone who wants to call me.

16 JUDGE ORIE: Yes. It will not be me, Mr. Davidson, but -- as you

17 will understand.

18 We suspend the videolink for a while.

19 [Videolink suspended]

20 JUDGE ORIE: Mr. Troop, let me just try to imagine what your

21 problem is, that you're alone today. Not -- I can indicate that the

22 Chamber intends to deliver a decision on, could I say, the interrupted 92

23 quater decision now considering additional information the Chamber has

24 received, where under normal circumstances one would wait until an English

25 translation of a German document is available, the Chamber considers under

Page 10949

1 the present circumstances that there's no need to wait for that.

2 Then the second decision the Chamber intends to deliver is

3 about -- may I say the three 92 bis statements against the one new 92 bis

4 statement. That's a decision, of course -- and the third one is about the

5 reasons for an extension of time in order to -- the Kabashi decision which

6 already has been delivered, but the reasons still to be given. And also

7 including a decision on the Prosecution's motion to hear Witness 30 via

8 videolink.

9 But the Chamber will refrain from any further discussions at this

10 moment and we'll just deliver these decisions.

11 If you would like to have a written, although non-authoritative

12 statement, of course, you could look at the -- at your screen later on.

13 But if you would prefer to have something to read on paper, then there

14 might be a solution for that.

15 MR. TROOP: Your Honour, I'm content to read the transcript.

16 JUDGE ORIE: Okay.

17 MR. TROOP: Subsequently, simply for formal reasons, perhaps I

18 could ask Ms. Antoniette Trapani, my legal assistant who's present in

19 court, to represent my client's interests during my absence.

20 JUDGE ORIE: Yes. Yes, is she qualified to?

21 MR. TROOP: She's -- she's not formally qualified, but she can

22 certainly get my attention if -- if --


24 MR. TROOP: -- if anything arises which --

25 JUDGE ORIE: Yes. If anything arises which bothers her -- then

Page 10950

1 whenever she then leaves the courtroom, we'll make a pause in order to

2 take care that Mr. Brahimaj is not unrepresented. If that's an agreeable

3 solution.

4 MR. TROOP: I'm very grateful. Thank you.

5 JUDGE ORIE: Okay. Then I don't know who is going to leave or not

6 to leave the courtroom for making telephone calls. I leave it entirely to

7 everyone. Although, I would be a bit surprised if no one leaves the

8 courtroom to make phone calls. Meanwhile, the Chamber will deliver --

9 MR. GUY-SMITH: It looks like we are all going to stay here so we

10 can all hear the decisions.

11 JUDGE ORIE: Yes. But I'm not -- I take it that Mr. Re would --

12 would like to speak to Mr. Karnavas under the present circumstances.

13 MR. RE: Yes. I'll leave Ms. Schweiger here.


15 Yes, it looks like an exodus but ...

16 Then the Chamber will deliver first the decision on the

17 Prosecution's motion to admit evidence under Rule 92 quater.

18 It is the Chamber's decision on the Prosecution's motion to admit

19 evidence under Rule 92 quater as filed on the 5th of November, 2007.

20 The Prosecution's motion concerns one of the witnesses who was

21 added to the Prosecution's witness list following the Chamber's decision

22 to amend the indictment on the 15th of October, 2007.

23 On the 16th of October, the Prosecution sought to have the

24 statement of this witness admitted pursuant to Rule 92 bis. When the

25 Registry's presiding officer attempted to obtain the necessary

Page 10951

1 attestation, the witness refused. According to the Prosecution's motion,

2 the witness stated on this occasion that he did not want to sign anything

3 and that he would not go to The Hague unless he was forced to do so.

4 The Prosecution has based its Rule 92 quater application on the

5 witness's medical condition and the fact that the witness is of advanced

6 age. The medical certificate accompanying the Prosecution's motion

7 indicates that the witness suffers from physical and mental ailments,

8 without further specifics, and that the witness has been under continuous

9 medical treatment since 1999.

10 The Defence for the three accused responded on the 8th, the 13th,

11 and the 14th of November that the Prosecution's motion should be denied.

12 On the 20th of November, the Prosecution submitted an additional

13 medical certificate providing further details about the witness's health

14 condition.

15 The Chamber observes that the medical certificates do not satisfy

16 the Chamber that the witness is unable by reason of bodily conditions to

17 testify orally in this case. Moreover, the witness appears to have told

18 the Registry's presiding officer, or I should say the presiding officer

19 appointed by the Registrar, that he was unwilling, rather than unable, to

20 give testimony in The Hague or to attest to the statement he previously

21 had given to the Prosecution. The Chamber has also considered that the

22 additional medical certificate refers to a condition of chronic

23 post-traumatic shock - at least, that's how it reads in German, "schock" -

24 I take it that the Prosecution is so familiar with the German language so

25 as to -- to correct me if I wrongly translate the word "schock" into

Page 10952

1 "shock" in English. So a condition of chronic post-traumatic shock and

2 pre-senile dementia. To the extent this demonstrates a mental condition

3 which disenables the witness to testify, it also immediately raises the

4 issue - given the fact that the statement was taken in 2003 - of -- the

5 issue of the chronic character of the post-traumatic shock and how long

6 the witness has suffered from pre-senile dementia. These are

7 circumstances the Chamber has to consider under Rule 92 quater (A)(ii) in

8 view of the effect they may have on the reliability of the statement.

9 Taken together, the Chamber is not satisfied that the written

10 statement meets the requirements in Rule 92 quater for admission. And the

11 Chamber therefore denies the Prosecution's motion.

12 And this concludes the Chamber's decision.

13 I now move to the decision on the Prosecution's submission of the

14 statement of Witness 51 and the application for trial-related protective

15 measures for this witness.

16 On the 2nd of November, 2007, the Chamber admitted three

17 statements of Witness 51, conditional upon receiving an attestation under

18 Rule 92 bis (B) by the 15th of November, 2007. The Prosecution has not

19 provided this attestation, so this conditional admission is now void.

20 On the 13th of November, 2007, the Prosecution tendered a new

21 statement of Witness 51 dated the 8th of November, 2007, with an

22 attestation under Rule 92 bis (B). Compared with the previous

23 conditionally admitted statements, paragraph 14 and 16 are entirely new

24 and paragraph 15 contains some new information.

25 On the 19th of November, 2007, the Defence for Mr. Haradinaj and

Page 10953

1 Mr. -- for Mr. Balaj filed separate submissions on the matter, objecting

2 to the admission into evidence of the new statement of Witness 51. On the

3 19th of November, 2007, the Defence for Mr. Brahimaj joined in the

4 submissions of the Defence for Mr. Haradinaj.

5 On the 20th of November, 2007, the Prosecution filed its reply to

6 the Defence submissions on the matter, seeking leave to reply to the

7 Defence responses and guidance as to whether it should seek Rule 92

8 bis (B) attestations for the three conditionally admitted statements of

9 Witness 51.

10 Concerning the admissibility of the statement under Rule 92 bis,

11 the Chamber refers to its decision of the 2nd of November, 2007. The

12 Chamber considers that the new information contained in paragraphs 14

13 through 16 does not warrant a different approach.

14 On the 13th of November, 2007, the Prosecution requested that

15 Witness 51 be allowed to retain her pseudonym and that a redacted version

16 of her statement be admitted into evidence. The legal test for granting

17 protective measures applied by this Chamber has been set forth numerous

18 times and there is no need to repeat it.

19 The Prosecution reported that no threats have been made against

20 Witness 51. The witness owns property in Kosovo, and the witness's

21 statement describes the identification of the remains of missing relatives

22 and the attempts at exhumation of the graves of these missing relatives.

23 The Chamber cannot see how this evidence may antagonise people who reside

24 in Kosovo. Therefore, the Chamber denies the Prosecution's application

25 for trial-related protective measures.

Page 10954

1 The Chamber admits the new 92 bis statement of Witness 51 into

2 evidence. The Chamber instructs the Prosecution to upload the 92 bis

3 witness statement of Witness 51 into e-court and instructs the Registrar

4 to assign an exhibit number to it and inform the Chamber and parties of

5 the exhibit number so assigned. The Chamber orders the Registrar to make

6 public the evidence of Witness 51, unless the Prosecution informs the

7 Chamber and the Registrar by 5.00 p.m. on the 22nd of November, 2007 that

8 it prefers to withdraw the witness's evidence.

9 The Chamber grants the Prosecution's request for leave to reply to

10 the Defence's responses and instructs the Prosecution not to seek Rule 92

11 bis (B) attestations for the three previous conditionally admitted

12 statements of Witness 51.

13 And this concludes the Chamber's ruling on this matter.

14 I now move on to the reasons for granting an extension of time in

15 order to hear Kabashi's testimony and a decision on Prosecution's motion

16 to hear Witness 30 via videolink.

17 The Chamber would now like to address these two issues in relation

18 to the extensions of the Prosecution's case.

19 Firstly, with regard to today's witness, the parties will recall

20 that on the 1st of November, 2007, the Chamber granted the Prosecution's

21 motion to hear Mr. Kabashi's evidence via videolink. On the 14th of

22 November, 2007, the Prosecution filed a motion requesting that the

23 evidence of Mr. Kabashi be heard on the 20th of November. On the 15th of

24 November, 2007, the Chamber granted this request, stating that it would

25 give the reasons for this decision in due course.

Page 10955

1 In taking this decision, the Chamber was mindful of the fact that

2 on the 31st of October, 2007 it announced that it expected the Prosecution

3 to close its case on the 16th of November, 2007. However, the Prosecution

4 has shown that it exhausted all reasonable efforts to secure the evidence

5 of Mr. Kabashi by this date, and due to circumstances out of the

6 Prosecution's control, this was not possible. The Chamber therefore

7 decided to grant the Prosecution's -- to grant the Prosecution an

8 extension of time to complete its case for the sole purpose of hearing

9 Mr. Kabashi's evidence on the 20th of November, 2007.

10 Secondly, having read -- having now read the submissions by the

11 Defence, the Chamber would like to deliver its decision on whether to

12 grant the Prosecution a further extension of time in order to hear the

13 testimony of Witness 30.

14 As the parties are aware, the Chamber is currently seized of an

15 application by the Prosecution, filed on the 16th of November, 2007, for

16 an extension of time in order to hear the testimony of Witness 30 on the

17 21st of November, 2007. As with the previously mentioned witness, the

18 Prosecution argue that it exhausted all reasonable efforts to secure the

19 evidence of Witness 30 by the 16th of November but it was unable to do so

20 for reasons beyond its control.

21 The Defence responded in writing today, 20 November, arguing that

22 the Prosecution has had ample time to make the necessary arrangements and

23 with due diligence could have ensured his testimony before the end of its

24 case. As such, the Defence submits that the Prosecution should not be

25 granted a further extension to hear the testimony of Witness 30. The

Page 10956

1 Chamber does not agree. The procedural history as depicted by the Defence

2 does not adequately reflect the ongoing struggle to obtain Witness 30's

3 evidence. Even if the momentum may have been lost for a short while, this

4 is of minor import when balancing the expected importance of the evidence

5 of Witness 30 for the OTP case against the difficulties the OTP faced in

6 obtaining his testimony.

7 The Chamber therefore grants the Prosecution's motion for an

8 extension of time in order to hear the testimony of Witness 30. Further,

9 due to the unavailability this week of lead counsel for Mr. Brahimaj for

10 reasons that the Chamber finds understandable, the Prosecution is invited

11 to call Witness 30 on the 26th and the 27th of November of this year.

12 In issuing the decision, the Chamber would like to inform the

13 Prosecution that this further extension of its case is of an exceptional

14 nature and is granted for the sole purpose of hearing the evidence of

15 Witness 30. For all other purposes, the Chamber regards the Prosecution's

16 case as closed and hereby informs the Prosecution that it cannot use this

17 extra time for the submission of any evidence not directly related to the

18 scheduled testimony of Witness 30.

19 And this completes -- concludes the Chamber's ruling on this

20 matter.

21 Mr. Registrar, if I am not mistaken, since we interrupted the

22 videolink, some 17 or 18 minutes have elapsed. Therefore, the Chamber

23 would like to continue with the videolink, but we'll take one or two

24 minutes to allow Mr. Re, Mr. Guy-Smith, Mr. Dixon, and Mr. Troop to return

25 into the courtroom.

Page 10957

1 I take it that those who are closest to the gentlemen I just

2 mentioned are in a position to get them back into court within the next

3 three or four minutes.

4 Mr. Emmerson.

5 MR. EMMERSON: I'm not entirely sure what practical arrangements

6 were made immediately after they left the room. That's the only reason

7 why I hesitate.

8 JUDGE ORIE: Well --

9 MR. EMMERSON: I don't know where they are, in other words.

10 JUDGE ORIE: Well, investigative --

11 [Trial Chamber and registrar confer]

12 JUDGE ORIE: Upon further consideration, the Chamber, in awareness

13 that five or six minutes would not do if we wanted to continue until 7.00,

14 the Chamber decided that we'll have a break for 20 minutes, as usual.

15 We'll resume at three minutes past 6.00.

16 --- Recess taken at 5.42 p.m.

17 --- On resuming at 6.09 p.m.

18 [Videolink resumed]

19 JUDGE ORIE: Could I just verify that the videolink is functioning

20 properly.

21 THE REGISTRAR: [Via videolink] Yes, Your Honour, we could hear

22 you.

23 JUDGE ORIE: Thank you.

24 Mr. Kabashi, before we would continue, let's try to cut matters

25 short. Although you may be well aware of it, Rule 77 tells you that being

Page 10958

1 a witness before a Chamber, a contumacious refusal or failure to answer a

2 question is considered to be contempt and the maximum penalty that may be

3 imposed on a person who is found to be in contempt of the Tribunal is a

4 term of imprisonment not exceeding seven years or a fine not exceeding

5 100.000 Euros, or both.

6 Mr. Kabashi, before we adjourned, a question was put to you by

7 Mr. Re which you failed to answer. And from your responses, I understood

8 that you would not only not answer this question but you would not answer

9 any question that would be put to you as a witness in the case in which

10 you are now called to testify as a witness.

11 Could you confirm that I understood this well?

12 THE WITNESS: [Interpretation] Yes, I did.

13 JUDGE ORIE: Yes. Then I'm addressing Mr. -- you, Mr. Davidson

14 and Mr. Karnavas. May I take it that you have advised Mr. Kabashi about

15 his duty to testify and about his present position?

16 Yes.

17 MR. DAVIDSON: [Via videolink] My advice to my client is -- is

18 confidential.

19 JUDGE ORIE: Yes. I'm not asking for the advice. I'm asking

20 whether you informed him about his position so that he is -- that whatever

21 you advised him to do, whatever decision he takes, that he's well informed

22 about the position he is in.

23 MR. DAVIDSON: [Via videolink] I -- he's as well informed as I can

24 make him. I -- I have to emphasise, I'm an American attorney. I have

25 been assigned to this case for less than 24 hours and I've had very little

Page 10959

1 opportunity to investigate the interplay between the laws and rules of

2 your jurisdiction and American law, so frankly, I -- I cannot say that I

3 can advise him fully about what consequences may actually flow from --

4 from a refusal to testify or failure to testify. I -- in an effort to cut

5 this short, I can tell the Court, with all due respect, and after talking

6 to Mr. Kabashi, that Mr. Kabashi is not going to testify today. I do not

7 close the door on a modification of that position in the future, but --


9 MR. DAVIDSON: [Via videolink] And, again, I -- on this end, in

10 terms of -- of the actual ramifications of any action that the

11 International Court takes, I'm, frankly, not in a position to fully advise

12 Mr. Kabashi today, because I -- this is very far outside my expertise.

13 JUDGE ORIE: Mr. Karnavas.

14 MR. KARNAVAS: Good afternoon, Mr. President. Good afternoon,

15 Your Honours.

16 I did have a conversation out in the hallway with the

17 Prosecutor -- or members of the Prosecution and with the Defence teams.

18 The Prosecution informed me of the various consequences, how they saw

19 them. I had a conversation with both the lawyer and Mr. Kabashi. I've

20 informed Mr. Kabashi what I believe to be the various options that are

21 available to him. I've informed him to the best of my ability, and I

22 believe that Mr. Kabashi was listening very carefully and -- you know, at

23 the end of the day, it's up to him to decide how and -- and what manner he

24 wishes to proceed.

25 JUDGE ORIE: Yes. I do understand. And I'm -- I'm not seeking to

Page 10960

1 be informed about any advice given, of course. It would be inappropriate

2 to even ask for that.

3 Then since it has been mentioned several times this afternoon that

4 Mr. Kabashi will not testify today and where it's kept open as an option

5 that that might be different on any -- any future day, apart from all the

6 practicalities, I would just like to stress that a failure to answer a

7 question is not undone by answering that question tomorrow or a week after

8 that.

9 I just want you, Mr. Kabashi, to know that it's not a kind of a

10 mechanism that if I don't answer the question today but I do it tomorrow,

11 that the failure to answer the question today could not be contemptuous

12 any more. I just want you to know that.

13 Is there -- I'm looking to the parties. Is there anything else we

14 need to address at this moment?

15 Mr. Re.

16 MR. RE: That -- that issue of Mr. -- where Mr. Davidson said a

17 moment ago, Mr. -- after talking to Mr. Kabashi, "Mr. Kabashi is not going

18 to testify today. I do not close the door on a modification of that

19 position in the future."

20 That -- that's what the Prosecution is very anxious to explore

21 with Mr. Davidson or Mr. Karnavas, of course, with the Trial Chamber, as

22 to what is meant by that. If Mr. Kabashi will, after receiving proper

23 advice from his lawyer in the States, who has just frankly and candidly

24 told the Trial Chamber that he's unaware and cannot properly advise his

25 client, having just received the brief, so to speak, if Mr. Kabashi is in

Page 10961

1 a position to change his mind later today, after he speaks to his lawyer,

2 and maybe testify tomorrow. That's all we're very much interested in. Is

3 that door open that Mr. Kabashi would reconsider and testify tomorrow, and

4 then we could maybe move the proceedings forward. If Mr. Davidson could

5 be asked that and maybe to communicate that, we might be able to resolve

6 this situation.

7 [Trial Chamber confers]

8 JUDGE ORIE: Mr. Re, it's -- it's not a legal expression to say

9 "never say never," but it might come close to that.

10 We have now struggled with these -- this issue for many, many

11 months. If a dramatic change -- and I think it needs more to say perhaps

12 not today, perhaps tomorrow, that's not a dramatic change. If -- if there

13 would be dramatic changes and if Mr. Kabashi, for whom we, I think, once

14 lifted the execution of an arrest warrant because he indicated that --

15 that he would come to The Hague and to testify, and that to have -- we had

16 to reinstate that -- the execution of the arrest warrant soon after that,

17 because Mr. Kabashi's intentions were not the same as his behaviour.

18 You know where we are, that is, at the very, very end of the

19 Prosecution's case. And --

20 THE WITNESS: [Interpretation] I never said that I --

21 JUDGE ORIE: And now to anticipate what the Chamber would do if

22 suddenly matters would be entirely different, I think the Chamber will

23 just wait and see what happens. And the Chamber is aware and takes it

24 that you're aware as well that it's one minute to 12.00. That means there

25 are 60 seconds left until 12.00 and that there is still something on our

Page 10962

1 agenda until 12.00. But if there would be dramatic changes, the Chamber

2 will hear of them.

3 At the same time, the Chamber will not engage in an endless

4 continuing story. That should be clear.

5 And, of course, the Chamber is not in a position to -- to in any

6 way be an obstacle to whatever you would like to initiate, but you should

7 not expect that every expectation of further testimony will be followed by

8 permission of the Chamber to follow that course.

9 MR. RE: I'm not -- I -- my submission is we're not asking for a

10 great deal at this particular point.

11 JUDGE ORIE: Well, the Chamber -- the Chamber waits --

12 MR. RE: We're just asking for --

13 JUDGE ORIE: The Chamber waits and sees what you come up with.

14 MR. RE: I'm just asking for the door to be left ajar.

15 We have the Registry officer in the United States at the moment

16 receiving the testimony. We have Mr. Kabashi being advised competently by

17 a public defender, a senior public defender who says he needs --

18 JUDGE ORIE: But are you talking about today or tomorrow or ...?

19 MR. RE: Well, the -- his --

20 JUDGE ORIE: I mean -- I mean, we had -- we --

21 MR. RE: I just -- I just said -- I just said a moment ago if we

22 could explore with his lawyer what he means by "today". Because his

23 lawyer has just said in the States --

24 JUDGE ORIE: Yes. But please, Mr. -- Mr. -- Mr. Re, do so in

25 court. You know there are exactly 35 minutes which would be available

Page 10963

1 anyhow for interpreters, technicians, et cetera. I've not even invited

2 them to stay on stand-by. We spent approximately one hour previously --

3 or at least, we gave an opportunity for approximately one hour to further

4 discuss these matters.

5 And I do understand that what you would like us to decide is that

6 everyone should remain stand-by until 7.00. Is that ...?

7 MR. RE: Well, that's -- that's a start.

8 JUDGE ORIE: Oh, a start.

9 MR. RE: No, no --


11 MR. RE: Can I -- can I please address you on this?


13 MR. RE: For the first time Mr.-- as far as I know, Mr. Kabashi

14 has a lawyer with him in the States who is advising him competently on his

15 rights and the issues and what may or may not occur in the future in

16 relation to his decision. It would appear, based upon what his lawyer has

17 just said to the Trial Chamber, that his lawyer has not been able to

18 inform him of everything, because his lawyer is not fully aware of all the

19 consequences of the decision which Mr. Kabashi may or may not make. That

20 is because his lawyer just said he's not aware of the interplay between

21 the United States jurisdiction and the jurisdiction of the Tribunal.

22 It may be, if the lawyer can speak to his client today, become

23 more apprised of the situation without my assistance.


25 MR. RE: It may be -- and the -- and the videolink is -- is there.

Page 10964

1 The Registry is there. Everything has been put in place.

2 That if he receives advice based upon -- fully informed advice

3 based upon a full appreciation of the powers of this Tribunal and the

4 consequences of failing to testify and the continuing contempt, or in my

5 submission, another contempt has been committed today, and the

6 consequences of that, he may change his mind. And if we leave it until a

7 bit later to see whether he would, leave it till today, and maybe --

8 maybe, overnight, there's one more chance. And the Prosecution just asks

9 the Trial Chamber, given we're at this position now, one minute to

10 midnight, to give us that extra possibility to have this important

11 evidence heard. And not to give up at this particular point. That's all

12 we're asking.

13 [Trial Chamber and registrar confer]

14 MR. DAVIDSON: [Via videolink] May I be heard?

15 THE INTERPRETER: Your Honours, the -- the interpreters note that

16 the witness said, we think -- we are not 100 per cent sure. He said that,

17 "I didn't say -- I never said I would not come to testify." Maybe he --

18 you should ask him again to confirm his position.

19 JUDGE ORIE: Well, first of all, I -- it is on the -- on our

20 screen that Mr. Davidson asked to be heard on the matter.

21 Mr. Davidson, you have an opportunity to -- to say what you want

22 to say.

23 MR. DAVIDSON: [Via videolink] I simply -- thank you, Your Honour.

24 I simply want to say I don't think it's realistic to think that

25 there's going to be any change in position in the next hour or even in the

Page 10965

1 next 24 hours. I have yet to have an opportunity to speak at length with

2 my client with the assistance of an interpreter. I emphasise again I

3 understand what I have been told by the Prosecutors over there with --

4 with regard to the -- the consequences for this witness if -- if he

5 doesn't testify. What I don't know has to do with -- with, you know, what

6 the -- what the actual practical effect of that would be.

7 I also have had no opportunity, I should say on the record, to

8 investigate whether there may be any privileges that he's in a position to

9 assert with -- with regard to the subject matter of his testimony.

10 You know, once again, I understand that extensive logistical

11 arrangements have been made for this proceeding today. I will say I was

12 not privy to any of those arrangements, and I first encountered this

13 defendant, once again, yesterday afternoon.

14 In any event, I do not want to mislead the Court by -- by

15 suggesting that with another hour, if you stay up late or something like

16 that, that that's going to change anything.

17 I will also tell the Court we are on the verge of a major holiday

18 weekend here in the United States. This court is going to be closed on

19 Thursday and Friday. I believe it is going to close early tomorrow.

20 So -- so for us to -- for me to do anything further productively with this

21 defendant is -- is going to take well into next week. And I -- I simply

22 don't think you should be concerned with -- with sitting for another hour

23 today, because I don't think that there's anything productive that I could

24 do that I haven't done already.

25 JUDGE ORIE: I'm looking at the Defence here in The Hague.

Page 10966

1 Anything to be added?

2 MR. EMMERSON: Not at this stage, no.

3 JUDGE ORIE: Mr. Guy-Smith. Nodding "no."

4 MR. GUY-SMITH: Nothing at this time, no.

5 JUDGE ORIE: Mr. Troop?

6 MR. TROOP: No, Your Honour.

7 [Trial Chamber confers]

8 JUDGE ORIE: Yes. We read on the screen that -- Mr. Kabashi, that

9 you wanted to say something we may not have heard. You have an

10 opportunity to repeat what you said or to say something.

11 At the same time, I'm not expecting you to explain why you don't

12 want to give testimony, because that's an issue which has been

13 sufficiently dealt with.

14 THE WITNESS: No, I -- I'm good.

15 MR. DAVIDSON: [Via videolink] The defendant -- or, I'm sorry, the

16 witness does not wish to say anything.

17 JUDGE ORIE: Yes. Then --

18 [Trial Chamber confers]

19 JUDGE ORIE: Then -- Mr. Kabashi, you heard Mr. Davidson saying

20 that it would be unrealistically to expect any change in your position, at

21 least for the next hours to come. Could you confirm that?

22 THE WITNESS: [Interpretation] Yes. I abide by what I said.

23 JUDGE ORIE: Yes. It's -- it's -- I take it that that's -- you

24 instructed him to -- to tell this.

25 Mr. Kabashi, I couldn't say that this concludes your testimony,

Page 10967

1 because that's not exactly the situation we find ourselves in. The -- you

2 have not answered the one question that was put to you. You have

3 indicated that you would not answer any other question as well. That's at

4 present the situation. Therefore, it's of no use to continue the

5 videolink.

6 I'd like to express my gratitude to you, Mr. Tarlow, and at the

7 same time invite you to bring to our attention whatever you'd - in

8 addition to what has already been said - bring to our attention. But I,

9 first of all, would like to express our gratitude for the assistance

10 provided by the United States for the proceedings before this Tribunal.

11 Do I understand that there's nothing you would like to bring to

12 our attention, Mr. Tarlow?

13 MR. TARLOW: [Via videolink] No, Your Honour, I don't -- I don't

14 think there is.

15 JUDGE ORIE: Then, Mr. Davidson, I understand that you are

16 assigned on very short notice. Thank you for your availability.

17 Mr. Karnavas, the same as far as you are concerned.

18 This concludes the videolink. Of course, also we'd like to thank

19 the representative of the Registry for assisting us in conducting this

20 videolink.

21 Mr. Kabashi, what further steps will be is still to be considered

22 by everyone competent to consider it.

23 This concludes the videolink.

24 [Videolink concluded]

25 [Trial Chamber and registrar confer]

Page 10968

1 JUDGE ORIE: Is there any procedural matters the parties would

2 like to raise at this moment?

3 MR. EMMERSON: Yes. Just for the avoidance of doubt, might I ask

4 that the order that the Chamber has made governing the conditions under

5 which there be communication inter parte directly or indirectly with this

6 witness continue. In other words, if there is any intention - I don't

7 know whether there is - for further communications to take place on the

8 part of the Office of the Prosecutor either with Mr. Karnavas or with the

9 witness or with the witness's US lawyer, that those be conducted under the

10 same conditions as those which were conducted during the interval.

11 JUDGE ORIE: This is a joint request? I see it is.

12 MR. GUY-SMITH: It is.

13 JUDGE ORIE: Mr. Re, anything to -- in response to this request?

14 MR. RE: I -- I'm -- I'm not quite sure, is Mr. Emmerson proposing

15 that if I speak to Mr. Karnavas, that he, Mr. Troop, and Mr. Guy-Smith

16 should be there and there should be a conference call or -- or the e-mail

17 should be --

18 JUDGE ORIE: Yes, that the communication is -- that the Defence

19 has an opportunity to follow in every respect the communications between

20 you and those counsel assisting Mr. Kabashi at this time. That's the

21 request.

22 Would it be by e-mail, then I take it that you would like to be

23 copied on the e-mail?

24 Would it be in a personal conversation, that you'd be invited for

25 that conversation.

Page 10969

1 And, of course, within the usual limits of courtesy, that is, not

2 to announce that you'd like to have a conversation with Mr. Karnavas at

3 two minutes past 3.00 this night but -- but reasonable notice.

4 Yes, Mr. Re. That's ...

5 MR. RE: I think Mr. Emmerson is presupposing that the contact

6 would be initiated by the Prosecution, as opposed to, say, Mr. Davidson or

7 Mr. Karnavas coming to the Prosecution and saying, "Look, we've got some

8 news. The news is the following." And that's something I have no control

9 over.

10 JUDGE ORIE: Mr. Emmerson.

11 MR. EMMERSON: I'm presupposing nothing. We're in a situation

12 where, for whatever extraordinary set of reasons, there is a line of

13 communication open between the Prosecution and a witness who's been sworn.

14 And so whatever mechanism takes place for that communication to be

15 furthered, it will not take place in the manner which is ex parte but

16 inter-parte, as far as the witness is currently -- has been sworn.

17 MR. RE: He has a lawyer. I wouldn't -- wouldn't go near the

18 witness. I mean, I don't know what Mr. Emmerson is saying.

19 JUDGE ORIE: Well, Mr. -- Mr. -- let me be quite frank, Mr. Re.

20 You were quite near to the witness when you explained to him about arrest

21 warrants, et cetera, et cetera.

22 MR. RE: I have no intention of attempting to communicate with the

23 witness. I don't have any intention of attempting to communicate with

24 Mr. Davidson either.

25 JUDGE ORIE: No -- okay. Now -- now --

Page 10970

1 MR. EMMERSON: I would --

2 JUDGE ORIE: If Mr. Davidson would approach you and give a

3 message, would you then please invite him to put this message on the

4 e-mail and copy it to the Defence.

5 MR. RE: Of course.

6 JUDGE ORIE: And not engage in any conversations of ...

7 Mr. Emmerson.

8 MR. EMMERSON: Yes. May I be clear. I wasn't suggesting that

9 Mr. Re would at this stage take the initiative to contact the witness

10 directly.


12 MR. EMMERSON: But the whole purpose of this dialogue is to get a

13 message between the Prosecution and the witness via his lawyers. That's

14 the function of the discussions that Mr. Re has been seeking to promote

15 and that's why I say they should take place inter-parte.

16 JUDGE ORIE: Yes. Mr. Karnavas, do you have any --

17 MR. KARNAVAS: I followed the -- the exchange. And I -- I'm fully

18 aware of my obligations.


20 [Trial Chamber confers]

21 MR. RE: Your Honour, rather than an order, could I just make an

22 undertaking.


24 MR. RE: And the undertaking would be the following. If there's

25 any communication in relation to -- with Mr. Karnavas or Mr. Davidson, I

Page 10971

1 will make sure the Defence are present, if it's personal communication.

2 And if there's any written communication, I'll make sure that it is copied

3 to the Defence.

4 JUDGE ORIE: Is that ...? Looking at the Defence, that's --

5 that's a solution.

6 MR. EMMERSON: Obviously, I assume personal communication would

7 include telephonic communication.

8 JUDGE ORIE: Yes. That's -- that's understood.

9 Then at the same time, if there would be any exceptional

10 circumstances which would require different matters, a different approach,

11 if the witness would inform Mr. Karnavas that his mother is -- I don't

12 know whether she's still alive -- is about to die and that she would

13 like -- he would like to visit his mother and that he would like to

14 discuss with Mr. Re issues as arrest warrants, that's, of course, issues

15 of a totally different nature. The Chamber would have to be fully

16 informed to grant any exception in that respect. And I gave the example

17 as a rather dramatic example. And that's exactly how it is intended.

18 That is, therefore, to say that any deviation needs the permission of the

19 Chamber and the Chamber should be fully informed about circumstances under

20 which it is asked.

21 Then any other matter?

22 [Trial Chamber and registrar confer]

23 JUDGE ORIE: There -- there was an issue of -- which is not

24 directly related to what we are doing today. And I'm especially

25 addressing you, Mr. Karnavas. That is, how to communicate filings in a

Page 10972

1 contempt case against Mr. Kabashi with him.

2 The Chamber would rather not rush into this matter at this very

3 moment. It seems to be a technical matter. And with your assistance, it

4 will not be a lot of work. But if your assistance and the assistance of

5 Mr. Davidson could be sought in order to make sure that the usual

6 communication with an accused of -- which is not clear yet whether he will

7 be self-represented or not, to -- how to establish that. We'll deal with

8 that, but not at this moment, not in the context of this case.

9 Then if there's nothing else, then we'll adjourn.

10 The Chamber is inclined to say that we'll resume on Monday, the

11 26th of November at quarter past 2.00 in Courtroom I, but that, of course,

12 is still dependent on a -- an application to hear Witness 30 at that day.

13 We have granted leave to hear the witness on that day. Of course, it

14 still depends on whether the Prosecution would call the witness for that

15 day.

16 Another matter is that the Chamber has dealt with quite a lot of

17 procedural matters today. Nevertheless, being so close to the conclusion

18 of the Prosecutor's case, the Chamber would -- does not envisage at this

19 moment to have any housekeeping session later this week. At the same

20 time, we cannot exclude that we would need one. Of course, if that would

21 be the case, the Chamber would immediately communicate this to the

22 parties.

23 And again, at this moment, the Chamber doesn't see any reason to

24 schedule it, but as I said earlier, the situation sometimes changes within

25 50 minutes or within 5 minutes. The Chamber, of course, hopes that this

Page 10973

1 situation will not change for the coming days.

2 [Trial Chamber and legal officer confer]

3 JUDGE ORIE: Mr. Re, perhaps a -- a final question. As far as the

4 26th and the -- and the 27th are concerned, have all the practical

5 arrangements been prepared? Could you give us any information about

6 whether it's technically possible at all to hear Witness 30 on the 26th,

7 which, of course, would allow you to make an oral application, if you

8 would wish to do so.

9 MR. RE: [Microphone not activated] Could Your Honour excuse me

10 for one moment.

11 JUDGE ORIE: Yes, if you activate your microphone. Yes.

12 [Prosecution counsel confer]

13 MR. RE: We make the oral application, as I understand it, with

14 the Canadian authorities, the only outstanding issue is whether the Court

15 would allow us to sit on that day. The Canadians have said if the Court

16 allows us -- allows the Prosecution to call the witness on those days, the

17 arrangements will be made. And as I understand it, they're fairly

18 confident the witness will testify.

19 JUDGE ORIE: Yes. Well, let's not speculate yet on that, Mr. Re,

20 but the Court has allowed you to call the witness on the 26th, so you now

21 make an oral application to hear the witness on that day in the full

22 confidence that the authorities will take care that the videolink will be

23 established and that all the arrangements are made.

24 Then with the proviso I just made for housekeeping matters, if

25 there will not be any housekeeping session, we adjourn until Monday, the

Page 10974

1 26th of November, quarter past 2.00, Courtroom I.

2 --- Whereupon the hearing adjourned at 6.45 p.m.,

3 to be reconvened on Monday, the 26th day of

4 November, 2007, at 2.15 p.m.