Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10975

1 Monday, 26 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.22 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 Mr. Re, the Chamber expected to hear the testimony of Witness 30

12 this afternoon. Could you please update the Chamber and, of course, the

13 public as well on what has happened.

14 MR. RE: I have been advised by the Canadian authorities that

15 Witness 30 has been hospitalised since last week when the Canadian

16 authorities were bringing him to the videolink location. He is being

17 examined by a medical practitioner, and the last information we had was on

18 Friday, I think it was, last Friday, which the Canadian authorities said

19 that his position would be reassessed within seven to ten days of that

20 date.

21 JUDGE ORIE: Yes. The result being that we cannot hear the

22 witness -- the evidence of Witness 30 on this day, which was together with

23 tomorrow, the last days for the presentation of the Prosecution's case.

24 Under those circumstances, the Chamber would like to deal with a

25 few procedural matters, the first one being to deliver a decision on the

Page 10976

1 Prosecution's motion to tender tape and transcript of Ramush Haradinaj

2 addressing a meeting in July 1998.

3 This motion of which I just read the title, was filed on the 19th

4 of November, 2007. The tape and transcript appear to only cover part of

5 the meeting at which Ramush Haradinaj allegedly was present. According to

6 the motion, the tape is part of a larger set of audio recordings provided

7 to the Prosecution by Witness 17. The recording was, however, not

8 tendered through Witness 17 and the only reference to the recording in his

9 testimony is a general reference to tape recordings made of meetings

10 between KLA and FARK representatives.

11 The Defence responded on the 22nd of November, 2007, requesting

12 that the Chamber reject the motion. The Defence pointed to a number of

13 difficulties in determining the relevance and probative value of the

14 material, in particular since the tape and transcript do not contain

15 information about when and where the meeting was held, who was present,

16 and whether matters other than those described in the transcript were

17 discussed at the meeting.

18 In previous decisions on admission of evidence, the Chamber has

19 pointed out that evidence should be presented in a meaningful way in court

20 with proper contextualisation and explanation by witnesses who are in a

21 position to do so. Otherwise, the Chamber has to determine the material's

22 relevance and probative value on the basis of the material itself.

23 The Chamber finds that the tendered material lacks context, and

24 the Chamber is not satisfied that certain vague references in the

25 transcript demonstrate the probative value claimed by the Prosecution.

Page 10977

1 The Chamber understands that what was discussed during the meeting

2 was the relationship between the KLA and FARK. As such, it is relevant;

3 however, this topic has been dealt with extensively by numerous witnesses,

4 including Witness 17.

5 Under these circumstances, the tape and transcript tendered do not

6 assist the Chamber, and the Prosecution's motion is therefore denied.

7 And this concludes the Chamber's decision on this matter.

8 The next decision the Chamber would like to render is the decision

9 on the Prosecution's motion of 23rd of November, 2007 for a further

10 extension of time to its case in order to attempt to secure the testimony

11 of Shefqet Kabashi.

12 The parties will recall that on the 20th of November, 2007,

13 Shefqet Kabashi appeared by videolink and refused to give evidence in this

14 case. At the end of that hearing, the Chamber informed the Prosecution

15 that it would only entertain an application for a further attempt in

16 gaining Mr. Kabashi's testimony if the Prosecution could show that there

17 had been some dramatic changes. The Prosecution was further warned that

18 the Chamber would not engage in an endless continuing story with regard to

19 this witness.

20 Despite the guidance of the Chamber, the Prosecution went ahead

21 with an application for an extension of its case in order to attempt to

22 secure the testimony of Mr. Kabashi at some unspecified date in the

23 future. The Prosecution bases this request on the mere expectation that

24 further contact with his counsel would allow Mr. Kabashi to gain informed

25 advice as to his legal position, with such advice potentially leading

Page 10978

1 Mr. Kabashi to change his mind about not testifying.

2 Mr. Kabashi first refused to testify on the 5th of June, 2007,

3 after which he was advised by counsel as to what the consequences of such

4 a refusal could be. Mr. Kabashi has since reiterated his decision not to

5 testify, most recently at the 20th of November, 2007 hearing. In the

6 present motion, the Prosecution acknowledges that Mr. Kabashi is still

7 unwilling to testify. There has therefore not been any change of

8 circumstances that would warrant a positive response to the Prosecution's

9 motion.

10 Further, the Prosecution seems not to have heeded the Chamber's

11 instruction given during the 20th of November, 2007 hearing, in which it

12 was informed that aside for the exceptional extension until the 27th of

13 November, 2007 in order to hear the evidence of Witness 30, the Chamber

14 considered the Prosecution's case closed. Moreover, the Prosecution has

15 now exceeded the 125 hours that were allotted to it at the beginning of

16 the case.

17 The Chamber will now address the two alternatives put forward by

18 the Prosecution should the Chamber decide not to grant it a further

19 extension of time. The first alternative is to admit Mr. Kabashi's

20 statements under Rule 92 quater. However, Rule 92 quater applies to

21 witnesses who are unavailable to testify due to death, or who can no

22 longer be traced or are unable to testify by reason of bodily or mental

23 condition. Mr. Kabashi is not unavailable due to any of these reasons but

24 is, rather, unwilling to testify. This request is therefore denied.

25 The second alternative put forward is that the Prosecution be

Page 10979

1 allowed to recall Prosecution investigator Barney Kelly, who was present

2 when Mr. Kabashi gave his statements, so as to give hearsay evidence as to

3 the statements provided by Mr. Kabashi to the Prosecution.

4 The Chamber finds this way of introducing evidence which goes to

5 the acts and conduct of the accused, much of it uncorroborated by other

6 evidence, both inappropriate and prejudicial to the Defence, who has had

7 no opportunity to test the veracity of the statements.

8 For the above reasons, the Chamber therefore denies the

9 Prosecution's motion in its entirety.

10 And this concludes the Chamber's decision on the matter.

11 Then I'd like to inform the parties about outstanding decisions or

12 outstanding reasons for decisions already delivered so as to check whether

13 there's no oversight.

14 Outstanding is a decision on admission of evidence in relation to

15 the Stijovic exhibits.

16 Further, there is an outstanding decision on the admission of

17 exhibits which were introduced through Witness 69.

18 Further, there is an outstanding decision on a smaller portion of

19 a Rule 92 quater decision in relation to Witness 1, and reasons are still

20 to be given to -- in relation to those portions of the Rule 92 quater

21 decision which were already decided.

22 Finally, there is still pending a decision on documents the

23 Prosecution seeks to have added to its Rule 65 ter exhibit list. For the

24 annexes A to F of that motion, reasons are still to be delivered, where

25 the decisions have been delivered already. As far as H through K are

Page 10980

1 concerned, the decision is still pending. Finally, there is a decision

2 pending on a motion for protective -- protective measures in relation to

3 Witness 35, and the Chamber expects that a written decision will be filed

4 today.

5 This just serves as a survey of what is still there on the desk of

6 the Chamber.

7 Now I would like to move to --

8 Yes, Mr. Guy-Smith.

9 MR. GUY-SMITH: If I might. I've gone through the survey. There

10 may be a couple of other matters that are still pending.

11 JUDGE ORIE: Yes, there are a couple of other matters pending.

12 I'll move on now.

13 MR. GUY-SMITH: Fine.

14 JUDGE ORIE: If at the end of my list they're still pending, the

15 Chamber --

16 MR. GUY-SMITH: Fine. Thank you so much. I just didn't know

17 whether -- because you said a survey whether or not --

18 JUDGE ORIE: Yes, this is mainly about motions.

19 MR. GUY-SMITH: Fine.

20 JUDGE ORIE: But I now move to outstanding MFI-numbered exhibits.

21 The Chamber does understand that on the basis of the agreed facts,

22 that the Prosecution seeks to vacate the following P exhibits. That would

23 be P746, P763, P774, P779, and P815.

24 Mr. Re, is it correct that these could be vacated?

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

Page 10981

1 JUDGE ORIE: Then, Mr. Registrar, the numbers I just mentioned and

2 which appear, as always, correctly on the transcript, should be vacated.

3 Then we have a few exhibits which were introduced through witness

4 Selca. Three of them were exhibits which were earlier marked "marked not

5 admitted," MNA. And these are P896, P897, and P898.

6 Are there any objections against the introduction of these

7 exhibits through witness Selca?


9 JUDGE ORIE: Mr. Emmerson.

10 Mr. Guy-Smith.

11 MR. GUY-SMITH: None.

12 JUDGE ORIE: Mr. Harvey.

13 MR. HARVEY: Nor from me. Thank you.

14 JUDGE ORIE: Then we have another document marked for

15 identification, which is P1229, which was not earlier marked as not

16 admitted but was a newly introduced document. Is there any objection

17 against the tendering of -- of -- against the admission into evidence of

18 this document?

19 If you would like to know what exactly it is, I could tell you.

20 Yes, Mr. Emmerson.

21 MR. EMMERSON: There -- there's no objection to the admission of

22 the document.

23 JUDGE ORIE: No. And we are talking, I take it, about the same

24 document, that is, a KLA 3rd Brigade official note compiled by Sadri Selca

25 dated the 25th of August, 1998.

Page 10982

1 MR. EMMERSON: That -- yes, that's the document on my screen. I

2 haven't -- I regret to say I haven't had an opportunity to cross-check

3 these documents, each of them with the transcript to see how they were

4 identified. My recollection of the testimony is that these documents were

5 identified through the witness.


7 MR. EMMERSON: If it should transpire on checking the particular

8 exhibits against the testimony that there is an objection that ought to

9 have been raised at this stage, might I have an hour after the close of

10 court today to communicate the position to the Trial Chamber?

11 [Trial Chamber confers]

12 JUDGE ORIE: Mr. Re, any objection against the request?

13 MR. RE: No.

14 JUDGE ORIE: The request is granted. However, since this might be

15 the last time we're sitting, the Chamber admits into evidence P1229, P896,

16 P897, and P898. And in relation to P1229, the proviso is there that the

17 Defence has an opportunity to address the Chamber within one hour from our

18 adjournment.

19 Mr. Emmerson, the Chamber checked on the transcript, but, of

20 course, interpreting a transcript, sometimes it's very explicit, sometimes

21 it's just explicit.

22 Then I'd like to move on to agreed facts by the parties.

23 The Chamber has received a joint filing by the parties dated the

24 23rd of November, 2007, filed on the 26th of November, 2007, in which --

25 in an attachment to which statement we find facts agreed upon by the

Page 10983

1 parties.

2 It is also indicated -- yes, first of all, I'd like to just

3 briefly remind the parties to what the procedure here is; that if the

4 parties agree on facts -- on matters of law and fact, that they can be

5 invited to file written submissions but Rule 65 ter (H) explains that the

6 final purpose of this is to have them recorded. Therefore, it's now on

7 the record that the parties have filed the submission on the 26th of

8 November and it's put formally on the record as agreed facts.

9 Now, in the motion in which the agreed facts are presented, there

10 is - I think it was in paragraph 3 - there is an observation about -- that

11 there's still ongoing discussions about additional agreed facts on

12 forensic and military issues.

13 Now, the Chamber would very much like to understand at this stage

14 of the proceedings what we are talking about, because during the

15 presentation of the Prosecutor's case, it's the Prosecution who wants to

16 prove or establish certain facts, and therefore it seems logical that the

17 Prosecution then makes proposals which are or are not finally accepted by

18 the Defence.

19 At the same time, if we are in the presentation of the Defence

20 case, the Defence might want to seek certain facts or matters of law to be

21 established and make proposals to the Prosecution to agree to certain

22 issues, certain matters of law and fact, which then might meet or not meet

23 the agreement of the Prosecution. These additional agreed facts, are

24 these agreed facts which under the logic I just described are facts or

25 matters of law the Prosecution would like to establish at this moment, or

Page 10984

1 are we talking about an ongoing discussion on matters which might be --

2 might be raised during the Defence case, if there will be a Defence case?

3 MR. RE: I suspect what's happened was it was a draft which the

4 Prosecution put together several months ago --


6 MR. RE: -- and has been circulating ever since and no one ever

7 took the last paragraph out, saying there were ongoing discussions. And

8 it may well be, as Your Honour says, that the Defence may wish to propose

9 some agreed facts. I think we've pretty much exhausted agreed facts in

10 the Prosecution case, unless the Defence has something they can add to it.

11 JUDGE ORIE: Mr. Emmerson.

12 MR. EMMERSON: There is in fact simply one matter, and it doesn't

13 fall directly within the rubric either of scientific facts or military

14 facts.

15 The Trial Chamber may recall that during the testimony of

16 Mijat Stojanovic, he marked two exhibits, which are D27 and D28, which

17 were aerial photographs to the same scale showing the position where he

18 was standing. At the time he claimed to see a man he purported to

19 recognize as my client, and the position where the man was standing.

20 And the one matter which I hope we would be able to reach a formal

21 agreement on is measured electronically through the two photographs, what

22 the distance between those two points is, for the assistance of the Trial

23 Chamber. Both documents are in evidence already. It's a matter of

24 formality --

25 JUDGE ORIE: It's just conclusions to be drawn from that.

Page 10985

1 MR. EMMERSON: Simply a mechanical measurement of the distance as

2 regards those two. But that's a matter I can deal with with Mr. Re.

3 [Trial Chamber and registrar confer]

4 JUDGE ORIE: Yes. That's --

5 MR. EMMERSON: Other than --

6 JUDGE ORIE: -- that's clear. Then at least the Chamber is aware.

7 Because we would be a bit concerned if there was still an ongoing process.

8 MR. EMMERSON: Other than that, nothing.

9 JUDGE ORIE: Because we are talking at this moment whether it was

10 in the -- where there's a small - how do you say it? - where the road bows

11 a bit from to the right of the photograph, rather than from down a bit to

12 the right there.



15 MR. EMMERSON: I don't think that's likely to be contentious.

16 Other than that, I can confirm the correctness of what Mr. Re has

17 indicated. There are no active or ongoing discussions between the parties

18 as far as forensic or military agreed facts are concerned.

19 JUDGE ORIE: Thank you for that information, Mr. Emmerson.

20 Then I would like to move to a totally different subject matter,

21 which is scheduling.

22 First of all, the Chamber would like to hear from the Defence

23 whether today or, if not, when the Defence could inform the Chamber as to

24 whether there will be a -- any 98 bis application.

25 MR. EMMERSON: I think in the past I've indicated that I would

Page 10986

1 request from the Trial Chamber the continuing indulgence that that be an

2 announcement formally made following the formal closure of the

3 Prosecution's case.


5 MR. EMMERSON: And so that obviously is the first issue that needs

6 to be resolved.

7 For complete accuracy, I would prefer to make the announcement

8 following receipt of the decisions on the Stijovic and Witness 69 exhibits

9 and the 92 quater application concerning --


11 MR. EMMERSON: -- Witness 1.

12 JUDGE ORIE: Yes, so --

13 MR. EMMERSON: But imminently is the short answer. As soon as

14 those -- as soon as those two matters are, or those two groups of matters

15 are resolved, I'm in a position to indicate on behalf of Mr. Haradinaj

16 what course the Defence proposes to take.

17 JUDGE ORIE: Yes. Mr. --

18 MR. GUY-SMITH: I am similarly situated. As soon as we reach

19 decisions on those matters and we are aware of the Prosecution case being

20 formally closed, we'll be able to formally indicate to the Chamber what

21 we're doing with regard to the 98 bis.

22 JUDGE ORIE: Thank you.

23 Mr. Harvey.

24 MR. HARVEY: The Defence has, of course, discussed these matters

25 together, anticipating this question, and my answer is not surprisingly

Page 10987

1 identical to that of my colleagues, Your Honours.

2 JUDGE ORIE: Yes. Thank you for that.

3 One second, please.

4 [Trial Chamber confers]

5 JUDGE ORIE: I'm seeking one clarification. You have mentioned

6 some decisions. Not all of the decisions I referred to earlier,

7 especially not the decision on the documents on the Rule 65 ter list, that

8 is excluded from your consideration?

9 MR. EMMERSON: That was an intentional omission, yes.

10 JUDGE ORIE: It was intentional.

11 Now, there's one other matter. I said before that the Chamber

12 would deliver this afternoon a written decision on protective measures for

13 Witness 35. Now, there is a possibility that if that decision would deny

14 protective measures, sometimes the Chamber gives a couple of days to the

15 Prosecution to consider whether they want to withdraw or not withdraw that

16 evidence.

17 Would that be time you'd consider to be -- to postpone the close

18 of the Prosecution's case?

19 [Defence counsel confer]

20 MR. EMMERSON: No, it won't affect the timetable for the

21 announcement of the decision.

22 JUDGE ORIE: Mr. Guy-Smith.


24 JUDGE ORIE: Mr. Harvey, the same I see.

25 Then the Chamber expects to deliver these decisions very soon, and

Page 10988

1 therefore we could continue to consider scheduling on the basis - let's

2 just take it as that - that by Wednesday noon the Prosecution's case would

3 be closed.

4 There are then two scenarios: Either we hear from the Prosecution

5 that their -- let me just have a look. The next question would be, if

6 there's no 98 bis, whether the Defence would present a Defence case,

7 because the one is not one decision whether or not to file a 98 bis

8 application is not an indication yet as to whether there will be a Defence

9 case.

10 Now, just for purposes of if there would be no 98 bis decision,

11 then if there would be a Defence case, the Chamber has considered how to

12 proceed.

13 The Chamber would, under those circumstances - and that's a

14 tentative scheduling at this moment which the Chamber puts to the parties

15 for comments - the Chamber would, if there would be a Defence case, expect

16 on the 10th of December to receive the information mentioned in Rule 65

17 ter (G), that is, witness list with all the information as put in 65 ter

18 (G)(i) and exhibit list as we find it under Rule 65 ter (G)(ii). So that

19 would then be the first date.

20 The second date in the tentative scheduling would be the 12th of

21 December, two days later, a Pre-Defence Conference, and then on the 8th of

22 January, the start of the presentation of evidence on behalf of the

23 Defence.

24 If there would be no Defence case, the Chamber would expect the

25 parties to file final briefs on the 14th of December and is inclined to

Page 10989

1 schedule closing arguments on the 9th and the 10th of January, 2008.

2 The Chamber could not schedule yet what would be the case if there

3 will be a 98 bis application, because the Chamber has some difficulties in

4 assessing how much time it would need the Chamber to give a decision on

5 that. So if that would be the case, then, of course, other scheduling

6 proposals will reach the parties.

7 I'd like to give an opportunity to the parties - perhaps you

8 first, Mr. Re - to the tentative scheduling as I just mentioned it.

9 MR. RE: If there is -- if the Defence -- if you get to the stage

10 where there's a -- either no 98 bis decision -- sorry, no 98 bis

11 application or the 98 bis application or decision after the application is

12 against the Defence, the Prosecution would very much ask the Trial Chamber

13 to direct the Defence to inform the Trial Chamber and the Prosecution as

14 to whether the accused are -- would be testifying; and if so, in what

15 order. And we would want that information on the date that the -- well,

16 as soon as possible, basically, but definitely on the date that the --

17 when the Defence has to file their pre-trial list of witnesses -- sorry,

18 their pre-defence list of witnesses.

19 JUDGE ORIE: Yes. From what I remember, it's good English

20 tradition that the accused who wants to testify testifies first. That's

21 not a tradition in all jurisdictions.

22 Mr. Emmerson, could you respond to this request and could you also

23 further comment on the observations the -- or the tentative scheduling the

24 Chamber expressed.

25 MR. EMMERSON: Yes. Can I take them in reverse order.

Page 10990


2 MR. EMMERSON: So far as the tentative schedule outlined by the

3 Trial Chamber in the event of there being no 98 bis submission but a

4 Defence positive case is concerned, I have no observations to make. The

5 timetable is one within which we would be comfortable to work and

6 incorporated within that, if there is a communication to be made to Mr. Re

7 on the 10th of December, that, of course, will include a communication as

8 regards individual accused.

9 JUDGE ORIE: Yes. That's as soon as on the 10th of December, you

10 would then provide the Chamber or -- yes, the Chamber with your witness

11 list and the exhibit list. You would then --

12 MR. EMMERSON: That's what I understood Mr. Re was inviting us to

13 confirm.

14 MR. RE: It has to be done by that date, clearly. I mean, the

15 accused have to be included in the list of -- of any witnesses. The

16 Prosecution wants that information before that date. I would ask the

17 Trial Chamber to set a schedule which includes notification of -- of those

18 dates so the Prosecution is in a position to be properly prepared, if, for

19 example, the accused were to testify immediately after the resumption of

20 the court, after the recess.

21 JUDGE ORIE: Yes. Now, Mr. Emmerson, the Chamber would invite the

22 Defence -- let's just again work on the basis of the assumption that the

23 Chamber has delivered all -- all decisions by Wednesday noon. It could

24 even be earlier. Then the Chamber would invite the Defence to -- to -- of

25 course, we would then immediately hear whether there will be any 98 bis

Page 10991

1 application; if so, we will make further scheduling efforts.

2 If there would be no 98 bis, then the Chamber would like to hear

3 whether there will be a Defence case at all. Preferably not later than

4 two days after that.


6 JUDGE ORIE: That would be the 30th of November.

7 MR. EMMERSON: I'm optimistic that we -- particularly if we know

8 we have reached a final position so far as the Prosecution's tendering of

9 evidence is concerned, I'm optimistic that we will be in a position to

10 inform the Trial Chamber both as regards 98 bis and as regards, at least

11 in broad terms, the shape of any Defence case, very, very shortly after

12 the Prosecution's case is closed.

13 Can I -- can I leave it with that in that formulation? And

14 certainly within the two additional days that the Trial Chamber has

15 indicated, possibly coextensively with the 98 bis decision.

16 JUDGE ORIE: Yes. That would mean that the Chamber, at least on

17 the 30th of November, would know --

18 MR. EMMERSON: Certainly by then.

19 JUDGE ORIE: -- If there would -- certainly by that date. Okay.

20 That's then on the record.

21 You said you would. The Chamber makes it a deadline as well, so

22 that's unless any of the other Defence counsel would have any observations

23 to be made in respect of that.

24 MR. GUY-SMITH: No, I'm more than happy to work with those dates.

25 Those dates make sense to me.

Page 10992

1 JUDGE ORIE: Yes. And Mr. Harvey, I see that you're in agreement,

2 just by your body language, nodding "yes."

3 MR. HARVEY: Nodding again. Thank you.

4 MR. EMMERSON: And as regards the alternative state of affairs,

5 that is to say, in the event of there being no 98 bis decision and no

6 Defence case called, may we reserve the right at this stage to return to

7 the Trial Chamber with observations as to the appropriate final date for

8 filing closing briefs?

9 JUDGE ORIE: Yes, final briefs then -- what I said, 14th of

10 December. You would like to consider whether that would cause you

11 problems.

12 Would it cause the Prosecution, under those circumstances, any

13 problems to file its -- again, this is all -- all on the basis of

14 assumptions, then. But unfortunately, we have to -- we have to work -- we

15 can't just leave it in the open.

16 Mr. Re.

17 MR. RE: No, the difficulties for the Prosecution, and indeed all

18 the parties at the moment, are with the court recess coming up and the

19 period in which the Tribunal will actually be closed.

20 The 14th of December makes it very tight, if it were to be final

21 trial submissions. We would certainly prefer them to be in early --

22 JUDGE ORIE: Well, final briefs.

23 MR. RE: Final briefs, yes.

24 JUDGE ORIE: Yes. Argument, of course --

25 MR. RE: I apologise. I meant final briefs.

Page 10993

1 JUDGE ORIE: Three weeks later --

2 MR. RE: We would certainly prefer those to be in January, if

3 possible, with the submissions being made at the Trial Chamber's

4 convenience afterwards, a week or whatever afterwards. So --

5 JUDGE ORIE: So you would say that -- I think the -- I think the

6 recess goes until the 6th or somewhere --


8 JUDGE ORIE: Let me just check.


10 JUDGE ORIE: The 6th is a Monday -- Sunday.

11 If the 6th is a Sunday, then you'd say, We'd rather file our final

12 briefs on the 7th and then have not more than one week to further prepare

13 for closing arguments, oral arguments, rather than to have three weeks to

14 prepare for that and file it before the recess.

15 MR. RE: Our preference would be longer for the written than for

16 the oral.


18 MR. RE: Our preference wouldn't be for the first day back after

19 the recess to file it. It would be slightly after that.


21 MR. RE: Perhaps at the end of that week or the beginning of the

22 next week.

23 JUDGE ORIE: Yes. And you mentioned that during the recess, of

24 course, there's no major activity in the Tribunal. I nevertheless take it

25 that you would use those inactive weeks in order to further -- just as the

Page 10994

1 Chamber, of course, would like to use those weeks for reading.

2 MR. RE: That's without question. Of course, as lawyers we all

3 work through -- through the court recess.

4 JUDGE ORIE: Take off -- take off Christmas day.

5 MR. RE: Yes.

6 JUDGE ORIE: And take off Boxing Day.

7 MR. RE: Of course, we'd like a few days off. But to be realistic

8 in terms of staffing, I believe and it being the United Nations and people

9 are coming from a lot of different places, there are a period of at least

10 several weeks where it's very difficult to coordinate having staff here.

11 That, of course, brings me to the other issue, which is scheduling

12 of a Defence case, if it gets to the point of there being a Defence case.

13 As Your Honours will appreciate, if Defence witnesses are called, the

14 Prosecution needs lead time to do searches on Defence witness names. And

15 that is probably the worst time for us to start a Defence case, because

16 it's not a case of the lawyers being away; it's a case of the staff who

17 perform the, what we call the ISU searches, not being here during those

18 particular weeks. The --

19 JUDGE ORIE: So what you are saying actually is that especially

20 the time between the 12th of December and the 8th of January would be very

21 short, where you'd have to rely on all kind of staff assistance in order

22 to do some of these researches.

23 MR. RE: That's correct. It's tightest in relation to the

24 preparation of Defence witnesses. And the inevitable result could be the

25 Prosecution asking for an adjournment if a -- if a witness is called

Page 10995

1 because we don't have the -- the information to prepare for

2 cross-examination or to assist the Trial Chamber.

3 JUDGE ORIE: Yes. That is on the record. I mean, I don't know

4 whether the Defence would like to respond to that. It would certainly

5 delay matters. But the reservation you made, Mr. Emmerson, in relation to

6 the 14th of December might, at least - the Chamber cannot exclude there's

7 a similar background --

8 MR. EMMERSON: Well --

9 JUDGE ORIE: -- for that one; that is that you would take some --

10 MR. EMMERSON: I'd like the opportunity to consult with my

11 colleagues on the Haradinaj Defence and, of course, with those

12 representing Mr. Balaj and Mr. Brahimaj and respond to the Trial Chamber's

13 suggestion with, if I can put it this way, a -- an -- a unified

14 alternative proposal. It may be that in the scenario postulated we won't

15 be very far apart from the Prosecution's suggestion, but I -- I am

16 reluctant to respond to that, so to speak, immediately on my feet without

17 having had an opportunity just to consider it with others.

18 JUDGE ORIE: Yes. Then we'll find further ways of communication

19 to -- to discuss these matters.

20 MR. EMMERSON: And --

21 JUDGE ORIE: There's one other matter I would like to raise here

22 as well. If not later than this Friday, the 30th of November, the Chamber

23 and the Prosecution would be informed as to - if there's no 98 bis

24 application - whether there will be a Defence case, would there be any

25 possibility - and I'm not just thinking in terms of what this Chamber

Page 10996

1 needs, but also in view of what this Tribunal needs - would there be any

2 possibility to already receive information, in whatever at this stage

3 vague form, either expressed in numbers of witnesses or --


5 JUDGE ORIE: -- numbers or weeks or months, or hours needed to

6 present the evidence --


8 JUDGE ORIE: -- in chief, so that, also in view of the

9 consequences it may have for other cases, that we have at least some

10 awareness of what to expect?

11 MR. EMMERSON: Absolutely. And as I -- as I indicated perhaps

12 elliptically a little while ago, if we are in a position that the

13 Prosecution's case is closed, for example, by noon tomorrow, I would

14 expect to be in a position to give the Trial Chamber some very clear

15 information within a very short time thereafter. And by -- by "a short

16 time," I can conceive of it being in a matter of hours, and certainly no

17 longer than a day.

18 JUDGE ORIE: Yes. Thank you for that answer, which, Mr. Guy-Smith

19 and Mr. Harvey --

20 MR. GUY-SMITH: It will not be a problem to give the Chamber

21 information in more than a vague form but less than a definite form.

22 JUDGE ORIE: Yes. Of course, the definite form we expect at the

23 65 ter (G) list.

24 Mr. Harvey.

25 MR. HARVEY: I will be --

Page 10997

1 JUDGE ORIE: Affirmative nodding.

2 MR. HARVEY: I will be in a similar position, yes, Your Honour.

3 Thank you.

4 JUDGE ORIE: If you'd just give me one second.

5 [Trial Chamber and legal officer confer]

6 JUDGE ORIE: Yes. When I earlier gave this summary of outstanding

7 decisions, of course there -- there might be smaller ones, but the Chamber

8 focused on decisions on evidence; although, we've mentioned a few others

9 as well.

10 And may I take it, Mr. Emmerson, the ones I mentioned, and the

11 ones you specifically mentioned where you said, These three decisions we'd

12 like to have received before we give any further information about 98 bis

13 or -- and soon after that, that you limited them to these three decisions?

14 Or are there any others in which --

15 MR. EMMERSON: Yes, I limited it to those three decisions. And,

16 again, I may have expressed myself somewhat elliptically, but I indicated

17 as far as those were concerned, it would be our preference to know the

18 precise position in relation to those three decisions before expressing a

19 view as to 98 bis. However, if it is of assistance to the Trial Chamber,

20 the decisive issue, so far as 98 bis is concerned, is having reached the

21 position where the Prosecution's case is closed; that is to say, no

22 further evidence is to be tendered. Obviously, there may be material upon

23 which the Trial Chamber then has a ruling to make. But the sooner we are

24 in a position of saying that the Prosecution's case is -- is formally

25 closed, the sooner we will be in a position to respond in respect of -- of

Page 10998

1 98 bis.

2 JUDGE ORIE: Yes. Is there any further matter to be raised at

3 this moment? Because I'm through my agenda, but ...

4 MR. EMMERSON: Could I just indicate --


6 MR. EMMERSON: -- there is one very minor matter that I wanted to

7 raise.

8 During the testimony of Avni Krasniqi, I placed on the record the

9 gist of information that had been received from the Swiss authorities

10 concerning a conviction in absentia and an outstanding warrant. And I --

11 for the record, that was starting at 10768, line 9. And at 10775, line 1,

12 I made a request that the Prosecution use its best endeavours to obtain

13 the judgement itself, given that this document had been in the

14 Prosecution's possession since June 2006 but wasn't disclosed until the

15 eve of the testimony.

16 The reason for that was because it will, in due course, be our

17 submission that this material is relevant to an assessment of the

18 credibility of the witness, and in particular in the light of the answers

19 that he gave in relation to it.

20 Now, I don't know whether we are going to be provided with this

21 information at any stage before the close of the case, but may I indicate

22 this, that in those circumstances and since we've reached in effect the --

23 the close of the Prosecution's evidence, may I indicate that I would ask

24 in those circumstances to have marked for identification the document that

25 was in fact served by the Prosecution, the gist of which I put onto the

Page 10999

1 record, but for the sake of complete accuracy it is Defence document

2 1D73-0001. The Trial Chamber has seen it and considered it, both in its

3 German original and in the English translation, and it will be capable of

4 being uploaded in both languages, certainly, I think, this afternoon.

5 Might I ask that be marked and might I tender it? Because it may be that

6 in due course, whether or not further information is available,

7 submissions will be made in relation to it, as far as the credibility of

8 the witness is concerned.

9 JUDGE ORIE: Mr. Re, I think there are two questions: First,

10 whether you are going to disclose the judgement itself; and when.

11 MR. RE: We don't have it. So we're not going to disclose it,

12 because we don't have it. If the Defence wishes to get the judgement,

13 they can make the relevant inquiries of the Swiss authorities. We've

14 disclosed everything in our possession relating to that witness which is

15 relevant to his credit.


17 JUDGE ORIE: This document -- you referred to "this document in

18 the Prosecution's possession since 2006," and "this document" did not

19 refer to the judgement.

20 MR. EMMERSON: Yes. Just to remind the Trial Chamber, the

21 position is this: A very short time before Mr. Krasniqi was due to

22 testify, the Prosecution disclosed the documents that had been in their

23 possession for over a year, indicating that there was a judgement and

24 conviction in absentia. And obviously the very late disclosure of that

25 material placed the Defence and all parties in an impossible position

Page 11000

1 properly to explore the credibility issues that this gives rise to with

2 the witness whilst he was testifying. And therefore at page 10775, line

3 1, I made on the record in front of Mr. Re, I believe, a formal request

4 that the Prosecution complete its disclosure obligations in respect of

5 this document by obtaining the judgement to which it refers and which

6 they, in our submission, most certainly, should have obtained for the

7 purposes of Rule 68 in June of 2006, rather than providing this material

8 to the Defence at the time when it was in practical terms useless for

9 deployment in cross-examination, because it couldn't be explored in

10 relation to the substance.

11 Now, the witness then gave certain answers, and obviously one

12 would want to be in a position to compare those answers with the

13 judgements.

14 If it is not available, in other words, if the Prosecution does

15 not complete its Rule 68 obligations, as we submit they are, then we will

16 be making certain submissions to the Trial Chamber in due course about how

17 it is proper to approach the evaluation of the witness's credibility when

18 the Prosecution has not properly disclosed material which is potentially

19 relevant to his credibility.

20 So it's not, in our submission, at this stage simply a question of

21 saying to the Defence, Well, you may have asked for it when he gave

22 evidence and I may not have objected, but now I'm am. The fact of the

23 matter is this is all part and parcel of the Prosecution's Rule 68

24 obligations and they made it impossible for the Defence to obtain the

25 material for deployment in a reasonable time by sitting on these

Page 11001

1 documents - I can't use any other word for it - sitting on these documents

2 for a period of approaching 17 months.


4 MR. RE: There's no -- Mr. Emmerson well knows --

5 JUDGE ORIE: One second, please.

6 Yes. I would like to hear your submissions on this matter. The

7 Chamber is less interested in hearing who blames who for what; however,

8 the Chamber is interested to see whether there's a practical way of

9 remedying the late arrival of the document on the Defence's desk.

10 I formulate it as neutral as possible, because the Chamber is more

11 interested in the results than in a judgement and who is to be blamed for

12 what.

13 Could you assist in any way, Mr. Re?

14 MR. RE: Well, if Mr. Emmerson had any authority to the -- legal

15 authority to the effect that the Prosecution has a legal obligation, as

16 he seems to assert, to obtain material, that is, to go trawling through

17 Swiss archives or somewhere to find material for the Defence, he would

18 have referred the Trial Chamber to it. In fact, the case law of the

19 Tribunal is directly against Mr. Emmerson's proposition.

20 JUDGE ORIE: Yes. Let's -- let's -- I'm going to interrupt you

21 there. Was there an obligation already once Mr. Krasniqi was on the

22 witness list to disclose this -- this disclosed material which seems to be

23 of an exculpatory nature?

24 MR. RE: Clearly. And the fact is we disclosed it.

25 JUDGE ORIE: So -- yes but --

Page 11002

1 MR. RE: I know that --

2 JUDGE ORIE: Okay. But --

3 MR. RE: I can't take away from the fact that it was late, but we

4 did disclose it.

5 JUDGE ORIE: It was late.

6 Now, I think if it would not have been late, that there would have

7 been an easier opportunity for the Defence to obtain the judgement, since

8 the Defence may have less easy access to official documents from

9 Switzerland compared to the Prosecution.

10 So, again, my question to you, unless the intervention of

11 Mr. Guy-Smith would make us move forward more quickly, then I would like

12 to hear from him.

13 MR. GUY-SMITH: I think I -- I think I might have a -- I might

14 have a solution. Once again, it's in the hands of the Prosecution.


16 MR. GUY-SMITH: But it seems the quickest way of getting

17 information and the most practicable way of getting information would be

18 for the Prosecution to send a request for assistance to the -- to the

19 Swiss authorities, as they've done previously. That, I think, would

20 probably be the most efficacious fashion of getting the specific

21 information to all the parties.

22 I know that if we -- I know that if we do it, it will take a long

23 time. And probably the case will be well over before we get it. But I

24 suggest to you that perhaps using the request for assistance mechanisms

25 that they have used repeatedly in other situations may well be the

Page 11003

1 quickest way for us to get the information.

2 JUDGE ORIE: Mr. Emmerson.

3 MR. EMMERSON: May I just make a practical suggestion?

4 JUDGE ORIE: Yes. At the same time, this interrupted Mr. Re's

5 answer.

6 MR. EMMERSON: I'm anxious that -- that this may have mushroomed

7 beyond the application that I'm making. All I'm asking for at the moment

8 is that the document that was disclosed and that was partially read onto

9 the record be marked for identification and admitted. Such submissions as

10 may follow from that or such arrangements are not a matter at this stage

11 that need detain the Trial Chamber upon which we are seeking a ruling.

12 All I'm asking at this stage is that this document be marked for

13 identification and admitted and the parties can then make such submissions

14 on the way in which the matter has proceeded as they consider appropriate

15 at the appropriate time.

16 JUDGE ORIE: Yes thank you for that.

17 One moment, please.

18 [Trial Chamber confers]

19 JUDGE ORIE: Mr. Re, the second issue I have not yet addressed is

20 whether you object to the tendering of 1D73-0001.

21 MR. RE: In a word, no.

22 JUDGE ORIE: That's clear.

23 Then, Mr. Registrar, would you please give -- assign a number to

24 that document.

25 THE REGISTRAR: Your Honours, that becomes D223.

Page 11004

1 JUDGE ORIE: Yes. Thank you, Mr. Registrar.

2 The matter the Chamber has considered for a moment was the

3 following: Whether, apart from disclosure obligations, and despite the

4 fact that the -- that the Defence does not insist on receiving that

5 judgement at this moment, whether it would be a good idea for the Chamber

6 to order the Prosecution to produce that judgement under Rule 98 -- of

7 course, we could give an order to that.

8 At the same time, Mr. Re, in view of the delays that were there

9 and which explain at least to some extent what happened and where the

10 Chamber certainly does not exclude that the judgement might shed further

11 light on the reliability of the witness, would you be willing to seek the

12 cooperation of the Swiss government, or would you say, no, under the

13 present circumstances, without an order, I would not proceed in that

14 direction?

15 MR. RE: Well,--

16 JUDGE ORIE: And the Chamber is not at this moment -- I add that

17 immediately the Chamber is not expressing any view on if that judgement,

18 either through an order or voluntarily by the Prosecution, would be asked

19 for and would not arrive in time, that that would in any way obstruct the

20 further proceedings in this case, including taking all kinds of decisions

21 the Chamber will have to take.

22 Mr. Re, is there any way that you would be willing to assist the

23 Chamber in trying to obtain that judgement?

24 MR. RE: There are several approaches here. If it's -- or

25 possibilities.

Page 11005

1 If the Trial Chamber is of the view that it would assist for the

2 Prosecution to make a request to the Swiss authorities and await the Swiss

3 authorities response, we're in your hands. And if that's what you want us

4 to do, we will do that. We don't necessarily need an order. We will do

5 it, if the Trial Chamber considers that would be of assistance. We do

6 understand that the disclosure was late, and I've explained before what

7 happened there.

8 However, the -- an RFA, a request for assistance from us is not

9 necessarily the speediest way of getting the material, but -- and we can

10 certainly do that. An order from the Trial Chamber directed towards the

11 Swiss authorities, may be quicker. It's just a matter of speed. But

12 we're certainly happy to entertain what the Trial Chamber is asking us, I

13 think.

14 JUDGE ORIE: Yes. Now you introduced a new element, which I

15 clearly wanted to exclude. You said, "If it would assist for the

16 Prosecution to make a request to the Swiss authorities and await the Swiss

17 authorities' response." We don't know whether that would be two days, two

18 weeks, two months, or two years.

19 So therefore, in order to avoid whatever misunderstanding, if an

20 effort would be made to obtain this judgement, nothing has been said on

21 how long we would wait to receive that and whether we would proceed

22 without it, if it would not arrive in time.

23 The Chamber will either issue an order or invite you to -- to

24 obtain that, but without the restriction, as you said, that we would also

25 wait until it arrives, or might do neither of these two.

Page 11006

1 MR. RE: Either way, we're venturing into the great unknown. I

2 can't tell you how long it would take the Swiss authorities to --

3 JUDGE ORIE: No, no, I'm not asking you. But --

4 MR. RE: Nor how long that would take to respond to an order from

5 the Trial Chamber, a request from the Trial Chamber.


7 MR. RE: It's a foreign government at a cantonal level.


9 MR. RE: It might take two days, it might take two weeks, it might

10 take two months.

11 JUDGE ORIE: The only thing that I wanted to say, that if it takes

12 too long, that we might not wait until it has arrived but that we might

13 proceed even without having received it.

14 Yes. Any further -- yes.

15 [Trial Chamber confers]

16 JUDGE ORIE: Yes. In the absence of any objections, D223 is

17 admitted into evidence.

18 MR. EMMERSON: Just as regards the procedure for tomorrow, for

19 example, if there is any prospect of us having reached the position where

20 decisions are available, there may be some virtue in -- I don't know

21 whether the Trial Chamber would wish formally to -- to sit in order to

22 have the Prosecution case closed, the Defence position on Rule 98 bis

23 formally announced on the record.

24 JUDGE ORIE: The Chamber has considered this. And one of the ways

25 of doing this would be to informally communicate to the parties that the

Page 11007

1 Prosecution's case is considered to be closed from that moment but to

2 include that in whatever the scheduling -- whatever will be scheduled,

3 there will be scheduling orders in the near future. And then to

4 retrospectively include that as one of the considerations in the -- in the

5 orders to follow. That would mean that we don't have to have the whole

6 team of interpreters, technicians, et cetera, to come here just to hear

7 that the Prosecution's case --


9 JUDGE ORIE: -- has been closed.

10 MR. EMMERSON: Yes. It might be that some practical sensible

11 proposals could be advanced once we've risen today through the Trial

12 Chamber's legal officer, perhaps for dealing with the matter without the

13 need formally to assemble, but possibly with a meeting at -- in one of the

14 buildings in the room.

15 JUDGE ORIE: Yes. We'll -- we'll consider whatever proposal is

16 there.

17 And as always, that informal communications between the Chamber's

18 staff and the parties, always to be copied to everyone. If they are of a

19 purely practical nature, they will not be reflected anywhere on the

20 record. If they have some substance which is relevant for the case, then

21 reference will be made to these communications in court. And finally, if

22 they really go to the substance of issues, that they then should be filed,

23 but then the Chamber will give instructions.

24 I just repeat this not because it is at this moment of primary

25 relevance but just to again put on the record how we deal with these type

Page 11008

1 of communications.

2 MR. EMMERSON: Thank you.

3 JUDGE ORIE: Any further matter?

4 MR. RE: There are two -- two other matters I'd like to deal with.

5 One is a correction to the record, something I said earlier on a different

6 day. And there is another one. There are several outstanding 92 ter

7 summaries. If we had maybe 15 minutes, we could probably put them onto

8 the record and use that time which had otherwise been set aside for

9 hearing testimony, for all the reasons which we've given before.

10 [Trial Chamber confers]

11 JUDGE ORIE: Yes. We'll consider that in a second, Mr. Re.

12 The second issue you'd like to raise was?

13 MR. RE: I said it's a correction to the record. On the 22nd of

14 October, I was referring -- in relation to Branko Gajic and questions

15 about the Prosecution -- what the Prosecution had put to Bozidar Delic in

16 the Milosevic case.

17 JUDGE ORIE: Is there a page and a line?

18 MR. RE: Yes. I'm just about to tell you. It's at page 9656. I

19 said: "There was no specific allegation of criminality leveled against

20 Delic, as far as I can see."

21 Since then, I've reviewed the 600 or so pages of

22 cross-examination. It appears that I overlooked a passage at page 42117

23 of the Milosevic transcript in which a general allegation was put to

24 Mr. Delic on the -- I think the first day of his cross-examination. There

25 may well be some individual instances which I haven't been able to find in

Page 11009

1 the transcript, so I correct, if there's any misrepresentation there I

2 correct anything that I may have misled Your Honours in relation to that

3 particular passage.

4 JUDGE ORIE: Yes. You were referring to lines 15 and -- no, 16

5 and 17 of that page. That's put on the record.

6 Then the other remaining matter, reading of 92 ter statements.

7 I'm looking at the clock. We are five minutes away from the usual break

8 after one hour and a half. If this is the only remaining matter, we could

9 ask the interpreters, technicians, and others who are assisting us to have

10 this finished so that we then can adjourn sine die; whereas, otherwise

11 we'd have to take a break and come back after 25 minutes.

12 Mr. Re, how much time would you need to read the 92 ter statements

13 you have in mind?

14 MR. RE: There are four summaries. I think about five minutes

15 each.

16 JUDGE ORIE: Five minutes each.

17 I think then it would be better to have a break first, so in order

18 not to -- unless I get a clear message from joint teams that they would

19 prefer to continue and then to be off the hook for the remainder of the

20 day.

21 But, Mr. Guy-Smith, you --

22 MR. GUY-SMITH: Yes. With regard to the correction made by

23 Mr. Re. There seemed to be two component parts to that. One was his

24 review of the Milosevic transcript and the other was talking to lawyers

25 who were in court conducting the cross-examination. I'm not sure whether

Page 11010

1 or not he's correcting both of those matters or just one of them. And

2 would -- would appreciate some clarification in that regard.


4 MR. GUY-SMITH: The representation was made not only with regard

5 to the transcript itself but also with regard to conversations that he had

6 had with people who were responsible --


8 MR. GUY-SMITH: -- for conducting cross-examination in regards to

9 the criminality --

10 JUDGE ORIE: Have you reviewed or have you re-thought your

11 recollection on such discussions, or was it just on the basis of your

12 review now of the transcript that you came to the conclusion that what you

13 said, and for which you gave two sources, whether that was not correct?

14 MR. RE: No, I based -- no, no, I -- no, I don't correct the

15 second part. I based part of what I said in talking to lawyers who were

16 in court conducting their cross-examination. There is a lawyer here, a

17 senior trial attorney, who I specifically --


19 MR. RE: -- spoke to before --


21 MR. RE: -- speaking to the Trial Chamber. There's nothing to

22 correct.

23 JUDGE ORIE: Reviewing your conclusion, was based exclusively on

24 your review of the transcript.

25 MR. RE: Absolutely. Completely on review of the transcript.

Page 11011

1 JUDGE ORIE: So let's not try to get into further detail on who

2 might then have not given correct information.

3 I'm looking at the booth now.

4 THE INTERPRETER: Your Honours.


6 THE INTERPRETER: We would prefer a break, if for nothing else

7 than at least to get the documents from -- from the Prosecution that they

8 will be reading from. Thank you very much.

9 JUDGE ORIE: That is a perfect reason to have a break.

10 We will have a break and we'll resume at ten minutes past 4.00.

11 --- Recess taken at 3.42 p.m.

12 --- On resuming at 4.14 p.m.

13 JUDGE ORIE: Two matters before we start hearing the 92 ter

14 summaries.

15 Mr. Re [sic], I promised you one hour after we would have

16 adjourned for P1229. If you by any chance would have made up your mind

17 already, it saves you sending an e-mail; or perhaps not.

18 MR. EMMERSON: The answer is, yes, there is no objection.

19 JUDGE ORIE: Yes. Then P1229 is admitted now, finally, into

20 evidence.

21 Mr. Re, when you read the 92 ter statements, could you please

22 spend half an ear on the French translation or invite someone else to do

23 that so that everyone can hear what you read.

24 Please proceed.

25 MR. RE: I'll share -- I'll share the reading duties with

Page 11012

1 Mr. Di Fazio.

2 The first one is the summary of Witness 64, who testified on the

3 3rd of September, 2007, at pages 7818 to pages 7888 of the transcript.

4 The Witness summary of Witness 64 is the following:

5 Witness 64 has been a police officer since 1992. His first

6 assignment was with the SUP in Pec, or Peja. He was stationed there until

7 14th of June, 1999, when the MUP and VJ had to leave Kosovo after the NATO

8 bombing. He works with the Service for Combatting Organised Crime, as

9 part of the Crime Police Department of the Serbian MUP. His specialty is

10 crime scene technician.

11 The witness says that the Dukagjin Zone in Kosovo is also known as

12 "Metohija" in Serbian. He -- his statement gives evidence about a number

13 of apparent KLA attacks on Serbs in the Dukagjin Zone in 1998.

14 The witness first arrived at the Lake Radonjic Canal on the 11th

15 of September, 1998. His function was to video record the scene. When he

16 first approached the canal, the witness saw about five or six bodies by

17 the wall of the canal. Further down from the first five or six bodies, he

18 saw two bodies near where the water falls about 5 metres to the canyon.

19 These bodies were covered with stones and earth.

20 On the 11th of September, 1998, the witness began to record by

21 video the scene at Lake Radonjic to get an overview before the forensic

22 experts began numbering the bodies. The witness also followed the

23 forensics experts and video-recorded their work. Bodies were marked with

24 labels such as "R-1", and so on. The "R" stood for Radonjic, and the

25 numbers identified each body sequentially. When each body was examined by

Page 11013

1 the forensic experts, it was put into a body-bag with its identifying

2 number. Later the bodies were put into a truck.

3 None of the victims were wearing uniforms and all were dressed in

4 civilian clothing. The witness could see bullet holes through the

5 victims' clothing. Some bodies were tied with barbed wire on their

6 bodies. One body had a rope around its neck.

7 The witness made video recordings of the canal at Lake Radonjic,

8 the Ekonomija farm (which also had a hazelnut farm), Glodjane village,

9 Hotel Pastrik, and other scenes between 11th of September and 26th of

10 September, 1998. The recordings were made on three videotapes which were

11 provided to the Office of the Prosecutor at the ICTY.

12 That completes the summary for Witness 64.

13 Mr. Di Fazio has one for Mr. Kelly.

14 MR. DI FAZIO: Two in fact, if Your Honours please. The summary

15 of the 92 ter statement of Barney Kelly relating to exhumations.

16 Mr. Barney Kelly is an investigator working for the Office of the

17 Prosecutor. He was a police officer in the Irish police. Since 2004, he

18 has been involved in the investigation of this case involving these three

19 accused. His primary focus has been on the areas around Lake Radonjic,

20 the Ekonomija farm, and Dasinovac.

21 Mr. Kelly describes how the Serbian authorities discovered a

22 number of bodies in these areas in September 1998. He describes how

23 post-mortem examinations were conducted at the Hotel Pastrik in Djakovica.

24 Mr. Kelly explains that a number of bodies were identified by relatives

25 using traditional means. This involves the identification of human

Page 11014

1 remains by clothing, personal property located on or near the remains, old

2 injuries, and so on. Four of the victims were identified as

3 Vukosava Markovic, Darinka Kovac, Isuf Hoxha, and Hajrullah Gashi.

4 In 2005, in order to carry out DNA testing of these human remains

5 amongst others, Mr. Kelly contacted relatives of the victims, including

6 those already mentioned, with a view to obtaining their consent for the

7 exhumation of the remains in order to carry out DNA testing. He also

8 sought blood samples from the relatives to permit DNA testing to be

9 carried out. In early August 2005, Mr. Kelly travelled to Piskote

10 cemetery, where the human remains of Vukosava Markovic and Darinka Kovac

11 were thought to be, but found the cemetery to be overgrown with vegetation

12 and realized that he would need assistance of relatives to locate the

13 bodies.

14 In mid-August 2005, Mr. Kelly approached the family of

15 Hajrullah Gashi, seeking permission to exhume his remains; however, the

16 family withheld its consent.

17 In late August 2005, Mr. Kelly went to Piskote cemetery and

18 relatives of Vukosava Markovic and Darinka Kovac pointed out the supposed

19 burial site of those two women. On the 7th of October, 2005, Mr. Kelly

20 went to Piskote cemetery and two grave sites were excavated. One grave

21 site -- one grave yielded the remains of woman, but the other grave had

22 the remains of two adults, a baby, and a child. The remains of the woman

23 were collected and handed to OMPF representatives. The grave, which had

24 revealed the two adults, baby, and child, were filled in again.

25 On the 11th of October, 2005, the remains from the first grave

Page 11015

1 were forensically examined and ascertained to be those of a woman aged 60

2 years or more and DNA samples were extracted from the bones. Subsequent

3 DNA analysis revealed that the remains could not be those of Darinka Kovac

4 or Vukosava Markovic.

5 On the 21st of October, 2005, Mr. Kelly again sought permission

6 from the family of Hajrullah Gashi permitting exhumation of his remains,

7 but permission was again refused.

8 On the 22nd of October, Mr. Kelly attempted to locate the grave of

9 Hajrullah Gashi himself at Prizren Muslim cemetery, but with no success.

10 In late November 2005, Mr. Kelly travelled to Podgorica Police Station and

11 obtained the consent of a relative of Isuf Hoxha to exhume his remains and

12 obtained a blood sample from this relative with a view to obtaining DNA

13 identification of any remains that might be found. Mr. Kelly had

14 reservations about the remains disinterred in October 2005 being those of

15 Darinka Kovac or Vukosava Markovic, and therefore in late November 2005 he

16 contacted relatives again with a view to revisiting the Piskote cemetery.

17 He obtained a blood sample from a relative of both women. He spoke to

18 other relatives of both women and obtained information of a possible

19 alternative grave site within the same cemetery.

20 On the 5th of December, 2005, Mr. Kelly travelled to Djakovica

21 Muslim cemetery with a relative of Isuf Hoxha, but the location of the

22 grave of Isuf Hoxha could not be located.

23 On the 9th of December, 2005, Mr. Kelly went to Piskote cemetery

24 again with relatives of Darinka Kovac and Vukosava Markovic. The cemetery

25 was again looked at with a view to locating the grave sites and an area

Page 11016

1 was pointed out by relatives as the area where the two women were buried

2 in 1998.

3 On the 12th of December, 2005, the area was exhumed but no remains

4 were found. On the 10th of December, 2005, Mr. Kelly again sought

5 permission from the family of Hajrullah Gashi to exhume his remains, but

6 again permission was refused.

7 That completes that summary.

8 I'll read the -- a second summary of the 92 ter statement of

9 Barney Kelly relating to photo-boards.

10 He testified on the 25th of June, and his testimony is to be found

11 at trial transcript references 6070 to 6115.

12 Mr. Barney Kelly is an investigator working for the Office of the

13 Prosecutor. He was a police officer in the Irish Police. Since 2004, he

14 has been involved in investigation of this case involving the three

15 accused. Mr. Kelly interviewed Witness 17 on the 10th and 11th of

16 November, 2004, and again from the 21st to the 26th of November, 2004.

17 During the course of the interviews, Mr. Kelly produced 19

18 photo-boards to the witness. The photo-boards were in colour, and each

19 had eight photographs of individuals on them, with each photograph

20 numbered from 1 to 8.

21 Mr. Kelly asked the witness to write down the name and

22 corresponding number of the photograph of any person he recognized on a

23 piece of yellow adhesive paper and stick it underneath the photo. The

24 witness proceeded to do that in the presence of Mr. Kelly and the

25 interpreter present.

Page 11017

1 The witness marked two photographs from two photo-boards as

2 depicting the accused Ramush Haradinaj. Both the photo-boards are annexed

3 at Annex A to Mr. Kelly's statement.

4 The witness marked three photographs from three photo-boards as

5 depicting the accused Lahi Brahimaj. The three photo-boards are annexed

6 as Annex B to Mr. Kelly's statement.

7 The witness marked one photograph from one photo-board as

8 depicting the accused Idriz Balaj. This photo-board is annexed as Annex C

9 to Mr. Kelly's statement.

10 The witness marked three photographs from three photo-boards as

11 depicting Nazmi Brahimaj. The three photo-boards are annexed as Annex D

12 to Mr. Kelly's statement.

13 The witness marked three photographs from three photo-boards as

14 depicting Alush Agushi. The three photo-boards are annexed as Annex E to

15 Mr. Kelly's statement.

16 The witness marked two photographs from two photo-boards as

17 depicting Fadil Nimani, also known as Tigri. The two photo-boards are

18 annexed as Annex F to Mr. Kelly's statement.

19 The witness did not recognize anyone from some of the

20 photo-boards. Those photo-boards are annexed as Annex G.

21 Although Mr. Kelly took a statement from the witness in which

22 these identification procedures are discussed, he overlooked including any

23 reference to the witness identifying Alush Agushi.

24 [Prosecution counsel confer]

25 MR. RE: The next one is the summary, the 92 ter summary statement

Page 11018

1 of Zarko Bajectic, who testified on the 27th of June, 2007, at pages 6358

2 to 6458 and his statement is Exhibit P377.

3 From July through October/November 1998, the witness was posted to

4 the State Security - that's the RDB - in Djakovica. The witness was sent

5 to Djakovica to investigate the criminal/terrorist activities and

6 organisational structure of the KLA. The RDB Djakovica was responsible

7 for the Dukagjini Zone. The RDB investigated kidnappings and murders

8 carried out by the KLA.

9 The witness described in his statement how the RDB collected

10 information on the organisational structure of the KLA and on its members.

11 The Dukagjini Zone came under absolute KLA control from March 1998

12 onwards.

13 The witness states that the KLA Dukagjini Zone was under the

14 command of Ramush Haradinaj from the village of Glodjane. Toger, or

15 Idriz Balaj, was in charge of the Black Eagles. This unit, the Black

16 Eagles, was used to kidnap people and commit murders. They wore black

17 uniforms. Lahi Brahimaj was in charge of the unit in Jablanica. He was

18 Ramush Haradinaj's uncle.

19 The smuggling of weapons by the KLA from Albania was organised by

20 Ramush Haradinaj. This began in March 1998 after the conflict at Prekaz.

21 Weapons were smuggled across the Albanian border either on foot or on

22 horses to Smonica village.

23 From March 1998 onwards, the fighting between the KLA and MUP

24 continued and intensified. The Dukagjini area had become inaccessible

25 from March 1998. The villages were inaccessible unless an operation was

Page 11019

1 staged by the MUP. Such an operation was staged by the MUP in September

2 1998 after the MUP and RDB received information of bodies located in the

3 Lake Radonjic Canal area. An operation was launched to investigate and

4 recover bodies in that area.

5 On the 10th of September, 1998, the witness attended the Lake

6 Radonjic Canal area and saw bodies. He later attended the Dasinovac crime

7 site as well.

8 The next one is the Rule 92 summary -- 92 ter summary of Witness

9 28, who testified on the 1st of November, 5th of November, and 6th of

10 November at pages 10162 to 10301 of the transcript. And this is one which

11 I started to read on the 1st of November and we paused to review it.

12 In 1998, the witness worked as a human rights worker for the

13 Humanitarian Law Centre, a Belgrade-based NGO, and travelled frequently to

14 Kosovo to investigate crimes committed by both Albanians and Serbs. A

15 Serb researcher investigated crimes committed against Serbs, and Albanian

16 researchers interviewed -- researched crimes committed against Albanians.

17 They travelled to areas of conflict to investigate whether crimes had been

18 committed.

19 In 1998, the witness was in Kosovo for about a week to ten days

20 every month, with other researchers investigated crimes committed in the

21 Dukagjini area.

22 In early March 1998, the witness went to Cirez/Likoshani following

23 a MUP attack. Survivors reported the police attacking armed [sic]

24 civilians in their homes. The police had blamed the villagers for hiding

25 "terrorists."

Page 11020

1 Following the attack on the Jashari family compound in Prekaz on

2 about the 5th of March, 1999 -- 1998, I'm sorry, the witness travelled

3 there to investigate and witnessed Albanians digging up bodies in a field,

4 preparing to rebury them. The witness investigated the attack and found

5 out that Adem Jashari was known within some Serbian police circles as the

6 "Albanian Arkan" and was known as a local criminal with a close

7 relationship to the local police chief.

8 HLC researchers interviewed witnesses to the attack on the

9 Haradinaj family compound of 24th of March, 1998. That was the last time

10 that HLC researchers were allowed access to KLA-controlled areas in the

11 Decani municipality. An HLC researcher was stopped at a check-point in

12 April 1998 at Pozar on the way to Glodjane and refused access by

13 Daut Haradinaj.

14 From then onwards, MUP patrols and officers were regularly

15 attacked on the main road. In April 1998, Serb and Montenegrin refugees

16 in Babaloc told the witness that the KLA had been using grenade launchers

17 and shooting every day and night at the settlement and that it had been

18 under attack since late 1997. Three witnesses -- sorry, three houses in

19 it had been blown up by the KLA by the end of April 1998.

20 Then the last week of April 1998, the witness counted 34 Serb

21 families that had left their villages in the Dukagjini area. The witness

22 calculated that 123 Serb families had been living in Decan in early 1998.

23 HLC researchers established that by the 19th of April, 1998, some Serbs

24 had been ordered by the KLA to leave their villages and some had left in

25 fear, having previously been the target of attacks. By the 21st of April,

Page 11021

1 1998, the last Serb families had left their villages. Milovan and

2 Milka Vlahovic's daughter told the witness that on the 20th, the 21st of

3 April, armed KLA came to Gornji Ratis and were shooting in the air at Serb

4 houses. As a result, the Serbs left their houses. By the 12th of April,

5 the only Serbs remaining in Dasinovac were Slobodan Radosevic,

6 Milos Radunovic, and the Markovic family. The witness interviewed

7 Stanisa Radosevic, who had been taken to Glodjane KLA HQ and badly beaten.

8 The witness observed an escalation of the conflict between the KLA

9 and police and KLA and VJ along the border from March 1998 onwards.

10 Almost no civilian traffic was on the Pristina-Djakovica-Decani road by

11 the end of April. Bus services were no longer operating on the

12 Pristina-Djakovica-Pec road from the end of April. And I'm using the

13 Serbian names, it being a Serbian witness. By the end of May, the police

14 could not keep that road open and the witness had to detour by roads north

15 of Pec. On 24th or 25th of May, 1998, while in Pec, the witness heard of

16 two police being kidnapped by the KLA near Prilep. The witness travelled

17 to Dolovo to investigate reports of conflict and heard shooting and found

18 the MUP in the village and houses on fire and animals dead on the road.

19 By the end of April, it was clear that the KLA was expanding its

20 territory and mobilising villagers. Much information pointed to

21 Ramush Haradinaj as a KLA commander in Dukagjini. In mid-1998, the KLA

22 [sic] had information on the KLA structure in Glodjane, naming the three

23 main officials as Shkelzen, Daut, and Ramush Haradinaj. KLA attacks on

24 MUP patrols provoked retaliation by the MUP, which indiscriminately

25 shelled and burned Albanian houses and killed Albanian civilians.

Page 11022

1 Albanian males then joined the KLA.

2 The witness contributed to the HLC's Spotlight Reports published

3 in 1998.

4 [Prosecution counsel confer]

5 MR. RE: I actually overlooked sending the summary of Branko Gajic

6 earlier, but I've now sent a copy to the Defence. Unless there's any

7 objection, I'll propose to read that one onto the record as well.

8 JUDGE ORIE: Has the Defence had an opportunity to briefly review

9 the ...?

10 MR. EMMERSON: We have not, in fact. But given the status of the

11 document, unless others object, I don't propose to delay proceedings.

12 JUDGE ORIE: Mr. Guy-Smith.

13 MR. GUY-SMITH: Understanding that these are summaries but not

14 necessarily the evidence that the Chamber has heard.

15 JUDGE ORIE: Not only not necessarily but not the evidence.

16 MR. GUY-SMITH: In fact, indeed, not the evidence, yes. I think

17 we've already had that problem with one of the summaries just read, so ...

18 JUDGE ORIE: Yes. As a matter of fact, I've always stressed this

19 is to inform the public, rather than to use that as evidence.

20 Mr. Harvey.

21 MR. HARVEY: On the same basis, the same understanding.

22 JUDGE ORIE: Mr. Re, then on the same basis, you may read the

23 summary of Mr. Gajic, his testimony.

24 Please proceed.

25 MR. RE: This is the Rule 92 ter summary of Major-General

Page 11023

1 Branko Gajic.

2 Branko Gajic retired as a major-general in the VJ and deputy head

3 of the security administration, the UB, in 2001. Military intelligence

4 had an independent unit in Kosovo, the 14th Counter-Intelligence Group in

5 Pristina, which reported directly to the UB in Belgrade.

6 The witness made about 15 to 20 --

7 THE INTERPRETER: The interpreters do not have the summary.

8 MR. RE: -- inspection visits to Kosovo between 1994 and June

9 1999, including six visits in 1998.

10 JUDGE ORIE: Mr. Re, are the copies being distributed at this

11 moment?

12 MR. RE: They -- at this moment, they are.

13 JUDGE ORIE: Yes. Then you're invited to wait.

14 Perhaps if you resume once all the booths have received the

15 copies, on the point where you said, "Which reported directly to the UB in

16 Belgrade."

17 I think everyone is ready. Please proceed.

18 MR. RE: In January 1998, the witness met all counter-intelligence

19 officers who were part of the 3rd Army. Mr. Gajic became aware of the KLA

20 in the mid-1990s after reading its communiques which claimed

21 responsibility for period killings and attacks.

22 I'm about, I think, eight lines in, for the interpreters in the

23 booths.

24 I did not hear any French. Was that -- was that me?

25 JUDGE ORIE: If you say, "I did not hear any French. Was that

Page 11024

1 me?" That is a bit of a puzzle to me. I will listen to the French

2 channel. If you'd please continue, Mr. Re.

3 Yes.

4 MR. RE: When he visited Kosovo in late 1997, he was unable to

5 enter areas near Djakovica and Pec. In 1997, there were 55 attacks

6 against VJ along the border and 51 attacks in the rest of Kosovo. This

7 increased dramatically in 1998. He received reports of -- he received

8 reports of KLA activities, including the organisation of village staffs,

9 imposition of curfews, threats and beatings of Albanians opposed to the

10 KLA. He received reports that the Babaloc Serb refugee settlement was

11 shelled at the end of February 1998. The witness read many reports of

12 Serbian homes being attacked by the KLA (such as those in Bec on the 2nd

13 of March, 1998). KLA activity intensified after the attack on the Jashari

14 compound on the 5th of March, 1998. It increased its attacks on police

15 patrols and increased weapons smuggling across the Albanian border.

16 Military convoys travelled in heavily armed convoys. Mr. Gajic received

17 what he considered as reliable estimates of 3.000 armed KLA fighters, with

18 3.000 additional unarmed, by the 17th of April, 1998.

19 Colonel Bozidar Delic of the 549th Motorised Brigade requested a

20 state of emergency from the FRY government on the 5th of March, 1998.

21 Gajic was then receiving daily reports of KLA weapons smuggling. The 52nd

22 Military Police Battalion deployed at the southern end of Lake Radonjic in

23 March 1998 was to "act as a bone in the throat" of the KLA. Delic ordered

24 combat readiness on the 22nd of April, 1998 and assessed the strength of

25 the KLA there at 500 "armed terrorists." The VJ was preoccupied with

Page 11025

1 ensuring border post security after March 1998 and Kosare was the most

2 frequently attacked post.

3 In April 1998, the 549th Brigade reported that nearly all

4 able-bodied men were armed and that an effort was underway to forcibly arm

5 Catholic Albanians. General Gajic received reports of hundreds of KLA

6 members crossing the border in May 1998. On the 7th of May, the FRY

7 government widened the border zone to 5 kilometres in the area in which

8 the VJ was authorised to conduct operations. The witness received reports

9 in May 1998 of the VJ discovering large quantities of weaponry at the

10 border and of KLA military organisation. In over ten armed clashes, 23

11 KLA members were killed, six were captured, and many were wounded.

12 A report dated the 11th of May, 1998, accurately, in the witness's

13 opinion, says that "all the villages" on the north of the Junik-Djakovica

14 road were fully armed. On the 13th of May, General Pavkovic estimated

15 that the KLA held 30 per cent of Kosovo and had between 3 and a half

16 thousand and 4 and a half thousand men. The KLA attempted to link areas

17 under its control in Dukagjini with Drenica. General Lazarevic warned of

18 this on a report of the 13th of May, 1998. The KLA frequently attacked

19 MUP and KLA convoys along the roads. A Pristina Corps report of 17th of

20 May, 1998 shows that the KLA was successful and General Lazarevic

21 suspended convoys along the Pristina-Klina-Djakovica road and others.

22 On the 20th of May, 1998, the Pristina Corps forward command post

23 estimated that 30 per cent of Kosovo was under KLA control, with 10.000

24 armed individuals, including 5.000 actually participating in the

25 activities. In a particularly intense attack against a MUP convoy on the

Page 11026

1 24th of May, 1998, the KLA fired rocket-propelled grenades and automatic

2 weapons from both sides of the road at Prilep. On the 25th of May, the

3 MUP launched a counteroffensive after the abduction of police officers

4 Rade Popadic and Nikola Jovanovic. A VJ report on the 26th of May refers

5 to the KLA as mobilising against the MUP counteroffensive at Prilep.

6 That completes that summary. And for the record, Branko Gajic

7 testified on the 22nd and 23rd of October, 2007, at pages 9665 to 9813 of

8 the transcript.

9 JUDGE ORIE: Thank you, Mr. Re.

10 Since there appears to be nothing else on the agenda for today, we

11 adjourn sine die.

12 --- Whereupon the hearing adjourned at 4.52 p.m.,

13 to be reconvened sine die.