1 Thursday, 25 August 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Madam Registrar, please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
10 Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much.
12 Could we have the appearances for the day, please, starting with
13 the Prosecution.
14 MS. KRAVETZ: Good morning, Your Honours. My name is
15 Daniela Kravetz, appearing for the Prosecution, together with my
16 colleague, Aditya Menon, and our case manager, Line Pedersen.
17 JUDGE MOLOTO: Thank you very much, Madam Kravetz.
18 And for the Defence.
19 MR. EMMERSON: Good morning, Your Honours, Ben Emmerson for
20 Ramush Haradinaj, together with Rod Dixon, Annie O'Reilly, and
21 Andrew Strong.
22 JUDGE MOLOTO: Thank you so much.
23 And for Mr. Balaj.
24 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith,
25 with Holly Buchanan, Colleen Rohan, and Mr. Zyberi remains with us. And
1 could I take this moment also to ask for some assistance from the
2 technical service at this moment because one of my computers is off.
3 JUDGE MOLOTO: You can help him with that, Madam Registrar.
4 And for Mr. Brahimaj.
5 MR. HARVEY: Good morning, Your Honours. Richard Harvey,
6 assisted by Mr. Paul Troop, Ms. Sophie Rigney, Ms. -- ouch.
7 JUDGE MOLOTO: Assisted by Ms. Ouch?
8 MR. HARVEY: Sorry, my microphone started an interesting
10 Rudina Jasini and Mr. Luke Boenisch. Thank you, good morning.
11 JUDGE MOLOTO: Thank you.
12 Madam Kravetz.
13 [The witness takes the stand]
14 MS. KRAVETZ: Thank you, Your Honour.
15 WITNESS: ZORAN STIJOVIC [Resumed]
16 [Witness answered through interpreter]
17 Examination by Ms. Kravetz: [Continued]
18 Q. Good morning, sir. Good morning. I have very few questions left
19 for you.
20 MS. KRAVETZ: If we could please have up on the screen 03071.
21 And if the Serbian version could be displayed for the witness, and if we
22 could have the English and the original for the rest of the court.
23 Q. Sir, do you have the Serbian version of this document before you?
24 A. Yes, I do.
25 Q. Thank you. Sir, I have a few questions about this document and
1 we'll just start from the top. We see it starts by saying:
2 "To Smajl in Gllogjan - from Gani."
3 And it's signed 30th May 1998, Tropoja, Gani.
4 First, sir, do you know who this person referred to is, Smajl in
5 Gllogjan, is, who this reference refers to?
6 A. Yes.
7 Q. Could you tell us who that is.
8 A. This is a pseudonym used by Ramush Haradinaj.
9 Q. Sir, we see at the bottom it says "Tropoja." Could you tell us
10 where that is?
11 A. This is a small town in northern Albania.
12 Q. I'm going to read a portion of the document to you. It says:
13 "Smajl, we are aware of the situation in Kosovo. The problem
14 here is that we have none of the things that people need.
15 "The problem is that a lot of people have come to us, almost all
16 with your signature, and the problem is that prices have risen a lot for
17 these people who are buying Kalashnikovs themselves," and indicates the
18 types of weapons. And if we go down a couple of lines, it says:
19 "I would like to ask you as a friend to stop sending us people in
20 this way, because we cannot manage to feed them, let alone provide them
21 with resources."
22 Sir, we see this document is referring to a large number of
23 people going to this person in Tropoja with the signature of the person
24 that's being referred to as Smajl, which you've told us is
25 Ramush Haradinaj, to procure weapons. Is the information contained in
1 this document consistent with the information your service had at the
2 time on this matter?
3 MR. GUY-SMITH: Excuse me, I rise with regard to the manner in
4 which the question is asked, specifically the use of the word
5 "consistent," consistent with regard to the question asked has no
6 relevancy. Consistent with what? And what the import of consistent? It
7 comes from nowhere.
8 MS. KRAVETZ: I can ask it in a different way if Your Honours --
9 JUDGE MOLOTO: Tell us consistent with what, but if you want to
10 ask him, you can ask him.
11 MS. KRAVETZ: Well, I'll see if the witness can respond to the
12 question in the manner it's been put to him, and if not, I'll explore
13 that further.
14 Q. Sir, could you respond to my question.
15 A. Yes.
16 Q. Could you tell us what was the source of your information at the
17 time with regard to people going to Albania to procure weapons with
18 documents bearing the signature of Mr. Ramush Haradinaj.
19 A. We had a number of sources indicating this. Some of them were
20 the border guard units of the Army of Yugoslavia, they reported about the
21 mass crossings of the border by large groups from Kosovo going to
22 northern Albania and returning and bringing weapons in. And these border
23 control units in that period carried out a series of actions, arresting
24 and liquidating those groups. Other sources were our informants who
25 reported back to us about the activities, about the KLA arming, for
1 example, if you permit me to continue. In late March/early April there
2 were activities by the KLA in the rural area, according to the
3 territorial principle, meaning that practically every village formed a
4 KLA group and one of their primary tasks was to obtain weapons for their
5 activities. So in direct communication and co-operation with the KLA
6 staff in Glodjane, these people, with the knowledge of a part of the KLA
7 leadership in that region of Glodjane, crossed into Albania, purchased
8 weapons, and returned on the same route.
9 Q. Just a clarification on that answer -- regarding that answer, you
10 referred to the period of late March/April -- early April. Which year
11 were you referring to?
12 A. I'm sorry. Late March/early April 1998, after the conflict in
13 Glodjane which occurred on the 24th of March, 1998.
14 JUDGE MOLOTO: Can I just clarify some point here.
15 MS. KRAVETZ: Yes.
16 JUDGE MOLOTO: The transcript says at page 5, line -- let me
17 just -- hold it. Page 5, line 5, it says:
18 "With the knowledge of a part of the KLA leadership ..."
19 Is that what the witness said?
20 THE WITNESS: [Interpretation] Yes.
21 JUDGE MOLOTO: Which part? Which part of the leadership?
22 THE WITNESS: [Interpretation] The leadership of the group that
23 was acting in the area of the KLA, first of all, Ramush Haradinaj.
24 JUDGE MOLOTO: Thank you so much.
25 Anybody else in that -- as part of that leadership?
1 Ramush Haradinaj and who else?
2 THE WITNESS: [Interpretation] His closest associates at the time
3 were Fadil Nimani called Tiger, who was later heading the military
4 police; members of the Mehmetaj family; members of the Shalja family from
5 Dubovik, this was one of the first groups that came to that area and
6 brought weapons to Kosovo from northern Albania. Then there was a
7 logistics centre in Albania headed by members of the KLA, and that is the
8 area where they obtained their weapons and other equipment for their
9 activities in Kosovo and Metohija.
10 JUDGE MOLOTO: I just wanted to know the part that had the
11 knowledge of their activities. Thank you so much.
12 You may proceed, Madam Kravetz.
13 MS. KRAVETZ: Thank you, Your Honour.
14 Q. Just very briefly going back to the document, you spoke generally
15 about the leadership in Glodjane and their role. I was speaking about
16 the fact -- the information in this document asking you about the
17 information you had in relation to persons going with the signature of
18 Ramush Haradinaj and crossing into Albania to procure weapons. Did you
19 have information on that specific point; and if yes, could you tell us
20 what that was?
21 A. In the early stages, we didn't have too much information about
22 the manner of them going to northern Albania. What we did know was that
23 there were couriers, guides, who transferred groups of people through
24 corridors at the border between Yugoslavia and Albania and then would
25 bring them back. Later in time we received information about how the
1 leaders of those groups had some documents with them which identified
2 them as legitimate representatives of the villages that were going there
3 to obtain arms and equipment.
4 Q. And how were you able to obtain this information, that the
5 leaders were -- had some documents which identified them as legitimate
6 representatives of the village?
7 A. The state security centre in Pristina had information that
8 Xheladin Gashi from Glogovac was staying in northern Albania representing
9 one of the persons who was waiting for those groups and making it
10 possible for them to rest, to obtain arms and equipment, and then to
11 return. Also through our intelligence data we knew that Xhavit Haliti
12 was in Albania, his nickname was Zeka, who was the main logistics man of
13 the KLA at the time. This was the information available to us at the
14 time. There was -- there were a number of so-called camps in northern
15 Albania where these villagers from Metohija would arrive, these were
16 villages around Decani, Pec, and Djakovica, and they would go there in
17 order to obtain weapons and equipment. In the early stages, the weapons
18 were distributed for free, but then in time it grew into a business and
19 profit was generated, and all the things happened that usually happened
20 when we're talking about large quantities of money and also due to the
21 fact that more and more people were interested in obtaining weapons --
22 Q. Sir, can I --
23 A. -- I also know --
24 Q. I'll stop you there. I'm just going back to the document. Based
25 on the information you were able to obtain, can you or not confirm that
1 the information in the document we're looking at was correct, and I'm
2 referring specifically to the fact that people were going with documents
3 bearing the signature of Ramush Haradinaj to procure weapons? Can you
4 confirm that the information in the document before you on this matter is
6 A. At this moment, I really couldn't say that at that time, in May
7 1998, we had information that Ramush Haradinaj was signing certain
8 documents on the basis of which these people would go to obtain weapons.
9 What we did know was that they were not able to go to Albania without the
10 knowledge of Ramush Haradinaj and the group that he led in Glodjane,
11 because Glodjane was on the way to Albania. So it was almost like a
12 check-point through which everyone had to pass on their way to Albania
13 and on the way back from there.
14 Q. Thank you.
15 MS. KRAVETZ: Could we show the witness the original version of
16 this document. I know the -- only the Serbian version is being displayed
17 on his screen. Maybe we could have it up on the screen also in the
19 Q. Sir, we see that this document is a handwritten document, the one
20 we've been discussing. During your time with the RDB, have you had the
21 chance to come across or review documents of this type?
22 A. Yes, I have. I did have the opportunity to see documents like
24 Q. For the first time, I'm going to ask you to expand a little bit
25 on your answer. If you could explain when you had that opportunity and
1 when these documents came into the possession of your office.
2 A. The bulk of documents of this kind that we obtained came from the
3 June-September period in 1998, when the police, together with the army,
4 carried out a broader anti-terrorist organisation to unblock roads and
5 break-up KLA strongholds in that area. During that period, when the KLA
6 groups were withdrawing from the areas, we found numerous documents in
7 places where they were billeted. We found equipment, diaries, and all of
8 these things that they left behind when they were withdrawing. So there
9 were many of these documents, documents of this type; there were diaries
10 that some KLA members staying in this area wrote; there were lists of
11 members of the KLA, including the guard posts where they carried out
12 their duties, the people who manned those guard posts; there was
13 equipment; there were uniforms. We even found on the 24th of March, for
14 example, after the Glodjane conflict, we found in the compound of the
15 Haradinaj family, among other documents, lists of Albanians who were
16 suspected of co-operating with members of the Serbian security forces.
17 There were a lot of documents of that kind.
18 Q. Just to pick up on that answer, can you explain what these lists
19 were that you referred to of Albanians who were suspected of co-operating
20 with members of Serbian security forces? How did you know that these
21 were lists of Albanians suspected of collaborating with members of the
22 security forces?
23 A. I just recall a document that we obtained. This was a report
24 sent by Hidajet Hysini [Realtime transcript read in error,
25 Hidajit Hiseni"] then a member of the Presidency of Democratic Alliance
1 of Kosovo, who, for a number of years, was in prison, a member of the
2 national movement for the liberation of Kosovo, who sent it to an
3 unidentified person with suspicions that two women, to two unidentified
4 women, from the Zukaj and Coraj [phoen] families - I'm not quite sure
5 about the families, I think it was the Zukaj and Coraj families - were in
6 contact with the State Security Service of Serbia and that the Serbian
7 security service was gathering information through them about KLA
8 activities. We also obtained a document that indicated that
9 Rasim Sulejmani was involved in activities to gather data information in
10 that period about persons who in any way had contacts with the Serbian
11 security forces.
12 Q. Just to clarify your answer, you referred to a list of Albanians
13 suspected of collaborating, and then you referred to two families, Zukaj
14 and Coraj families. Were these families or members of those families on
15 the list that you were able to obtain?
16 A. There were two women who allegedly had an intimate relationship
17 with one of the members of the security service and that they were
18 gathering information about the KLA activities in that area.
19 If you permit me, I see in the transcript here where it says
20 "Hidajit Hiseni." It's not "Hidajit" but "Hidajet Hysini."
21 Q. Okay, so if I understand your answer correctly, the persons who
22 you have mentioned are persons who were, according to your sources,
23 involved in gathering this information for the KLA. They were not
24 persons who were listed on this list that you saw. Is that a correct
25 understanding, and please correct me if that's not correct or accurate?
1 A. Well, you didn't understand me quite correctly. Perhaps I
2 misspoke. It was two women from the families that I referred to.
3 According to Hidajet Hiseni's information were the source of the
4 information for the Serbian security forces. It was the suspicion and
5 information from Hidajet Hiseni. It was something that came from a
6 written document.
7 Q. If I can just maybe word my question differently. What I'm
8 trying to understand is how -- when you saw these lists, how did you know
9 that these were lists of Albanians suspected of collaborating with
10 members of the security forces?
11 A. Comparing that with our registers of our collaborators network,
12 network of informers, we established that a number of persons were
13 identified as sources of information for the Serbian security service.
14 Q. Okay. Now I think the answer is clear.
15 MS. KRAVETZ: Your Honour, I seek to tender the document that I
16 was referring to earlier, 03071.
17 JUDGE MOLOTO: The document is admitted into evidence.
18 May it please be given an exhibit number.
19 THE REGISTRAR: Your Honours, 65 ter 03071 will be Exhibit P127.
20 JUDGE MOLOTO: Thank you.
21 MS. KRAVETZ:
22 Q. I have one last matter, sir.
23 MS. KRAVETZ: And if we could bring up --
24 JUDGE HALL: If I may go back to the last question that counsel
25 asked. As I understand your answer, there was a -- the information that
1 you had about persons who were sources of information and the -- and your
2 answer to the earlier question which counsel was seeking to ask
3 clarification, as to how it was that you were able to conclude that the
4 lists seized were of persons who were regarded by the KLA, their
5 supporters, as collaborating with the Serbs. I'm not clear as to how it
6 was that you determined that although there was a correspondence or
7 commonality between your lists and theirs, how was it that you determined
8 that the lists that was seized were in terms of how those lists were
9 compiled as lists of collaborators. Do you understand my question?
10 THE WITNESS: [Interpretation] I do. With all due respect, I try
11 to be as brief as possible. The lists had explanations. For example,
12 one of those unidentified women that I mentioned on such and such a day
13 went to the Hotel Pastrik in Djakovica with a state security inspector.
14 I don't want to mention his name. If you insist I can, though. Then
15 Murat Haxhocaj was on that list as well. He is from the village of Luke,
16 I think, and this person was later killed. So next to each name on the
17 list there was an explanation of where, when, and whom they saw. So when
18 you put that against our registers of our informant network, we
19 established and came to the conclusion that these were, we felt, such
21 JUDGE HALL: Thank you very much. Thank you.
22 MS. KRAVETZ: May I continue, Your Honour?
23 JUDGE MOLOTO: Yes, you may, ma'am.
24 MS. KRAVETZ:
25 Q. Sir, just to follow-up from that answer, you said that Murat
1 Haxhocaj [Realtime transcript read in error "Haxhozaj"] - it's written on
2 the transcript - was one such person that was listed and was on the list
3 and was later killed. Do you know anything about the circumstances of
4 his death?
5 A. You're right, his name is Haxhocaj, I think; in other words, the
6 letter C instead of the letter Z. With all due respect, it's been a long
7 time, but I believe that a group of KLA members took that person out of
8 his family house. I believe that he was staying at the house of a close
9 relative, actually, and that his son was with him as well and that they
10 killed him after that. That's -- I'm now speaking from memory. I know
11 that he was taken out of the house of a close relative by some KLA
12 members and killed later.
13 Q. Yes, I understand it's been a long time and I'm asking you a lot
14 of details. Only if you recall, do you know where this person was from,
15 do you recall that?
16 A. I think the event happened at Gornja Luka or Donja Luka. These
17 are villages in the Decani municipality, right next to Decanska Bistrica,
18 not far from Decani itself. It's either Donja Luka or Gornja Luka.
19 These are two villages that are very close to each other.
20 Q. And just to clarify, could you tell us how you know this? I know
21 we're going back a long time back in time, but if you just could remember
22 how it is that you know this, how you obtained this information.
23 A. We had warned Murat Haxhocaj of the existence of that list. On
24 operative of the State Security Service from Decani warned him that his
25 name was on a list found during the search of the house of the Haradinaj
1 family at Glodjane. He was told to be very careful where he went and
2 that he had to inform us. When the murder happened, then we soon found
3 out --
4 JUDGE MOLOTO: Mr. Emmerson -- finish your answer before we give
5 Mr. Emmerson ...
6 THE WITNESS: [Interpretation] After the murder, members of his
7 family informed us. I believe that it was actually his brother-in-law.
8 And they reported him to be abducted and later killed, but it has been a
9 long timing so -- and I think it was in October or November 1998.
10 Anyway, towards the end of 1998 when he was killed, but I am speaking
11 from memory now.
12 JUDGE MOLOTO: Thank you.
13 Yes, Mr. Emmerson.
14 MR. EMMERSON: Your Honour, it may be that given the number of
15 caveats that this witness has placed around this portion of his evidence,
16 and given the fact that it is unsourced, that it's not going to trouble
17 Your Honours to any great extent in any event, but I have to make the
18 point that this is information which is being elicited without any
19 notice, without the Defence being given any advance indication, or having
20 had any opportunity to prepare itself or investigate the allegation
21 that's now being drawn through. And in those circumstances, it would be
22 wrong, we submit, for the evidence to be included within any
23 consideration of the testimony that's being given. It's simply being
24 given off-the-cuff from memory without sources and, above all, without
25 notice to the Defence, and that obviously would be fundamentally unfair.
1 JUDGE MOLOTO: Any response?
2 MS. KRAVETZ: Yes, Your Honour. On the issue of notice, I was
3 just following up on a question that one of the members of the Bench
4 asked, and this is the answer I got from the witness and now which I'm
5 simply seeking to clarify it. I wasn't intending to go into this issue,
6 but it just came out in testimony and I am simply trying to clarify it.
7 And it's also not new because the witness has in the past spoken about
8 these lists, he did so in the previous testimony and it's also part of
9 his statement.
10 On the issue about the sources or the source of this information,
11 the witness has explained to the best of his knowledge how he remembers
12 this, and it's really just a matter for Your Honours at the end of the
13 day to determine the weight to give to this specific evidence.
14 JUDGE MOLOTO: Thank you.
15 MR. EMMERSON: As a general comment, may I simply say this, the
16 ruling of the Trial Chamber in relation to this witness's evidence is
17 that the testimony and exhibits that he gave at the original trial
18 together with his Rule 65 ter statement are admitted into the record and
19 that the Prosecution is entitled to lead additional evidence of which the
20 Defence has been given notice in respect of the documents that it has now
21 sought to tender through this witness. Obviously, there's no objection
22 in relation to that. A slight danger for the way in which the evidence
23 is being led is that counsel for the Prosecution are using -- is using
24 documents as a spring-board to invite the witness to give broad-ranging
25 testimony which is not based on the document or an explanation of the
1 document of which the Defence has been given notice and which this
2 Trial Chamber required the Defence to be given notice of, but merely to
3 introduce a general topic and then to ask a series of wide-ranging
4 questions about which no notice has been given which in one way or the
5 other are said to flow from the document. But none of this testimony,
6 none of this testimony, has any relationship to the document that's being
7 exhibited or as to which notice has been given in accordance with the
8 requirement that this Trial Chamber that notice should be given. And so
9 we do respectfully ask Your Honours to keep this examination within the
10 bounds of what is a proper explanation of documents that you have ordered
11 can be admitted if proper notice is being given, rather than simply using
12 these documents -- and it's a comment I haven't made before but it
13 applies to much of the testimony that's been elicited, rather than simply
14 using the document as a spring-board for generalised, wide-ranging
15 testimony that is said in one way or another to derive from the document
16 that, in fact, has no direct relationship to it, and this is a good
18 MR. GUY-SMITH: On behalf of Mr. Balaj, I join in those remarks.
19 JUDGE MOLOTO: [Microphone not activated]
20 MS. KRAVETZ: Your Honour, respectfully, Mr. Emmerson's statement
21 is not correct. We gave notice as to the areas we anticipated to cover
22 in relation to each one of the documents that I have put to the witness
23 during my examination, and this was done in the form of a supplemental
24 information sheet which was disclosed to the Defence on Monday. So that
25 is not correct.
1 In relation to this specific topic of the lists that the
2 witnesses has just spoken about, I was simply seeking a clarification on
3 the basis of a question put by the Bench. It is not a new topic, so
4 we -- we weren't anticipating going there, but it's not a new topic.
5 It's an issue that was already addressed and on which the Defence have
6 already asked questions in the last trial, it has already been dealt with
7 before. So it's not a new topic for the Defence. But it's not correct
8 to say that we did not give notice on the issues we expected to deal
9 with. It's very clearly set out in the supplemental information --
10 clearly set out in the supplemental information sheet we disclosed to the
11 Defence, and we're happy to provide a copy of that to Your Honours if
12 there is an issue of dispute as to what we have given notice to.
13 JUDGE MOLOTO: Thank you very much. Okay.
14 MR. EMMERSON: Sorry. May I just take that one point out because
15 we do have the information sheet --
16 JUDGE MOLOTO: I do say yesterday, Mr. Emmerson that --
17 MR. EMMERSON: Yes.
18 JUDGE MOLOTO: Anyway, you are objecting --
19 MR. EMMERSON: No, no, I'm not objecting. I'm simply saying that
20 my learned friend indicates that notice has been given of the topics that
21 would be examined in relation to each document, that's true. But in
22 relation to this document, for example, which is, after all, a document
23 concerning the transfer of weapons, the witness -- the information sheet
25 "This witness indicates that the reference to Smajl in the
1 document is a reference to Ramush Haradinaj. The witness doesn't know
2 the author of the document but believes he was a person in charge of
3 logistics based in northern Albania. The witness notes that the author
4 of the document refers to the fact that persons were coming to him with
5 Haradinaj's signature and requesting weapons and supplies. This
6 information is consistent with information that the witness had at the
7 time in relation to Haradinaj's role in the procurement of weapons."
8 As one would expect, an indication of what it was sought to
9 elicit in relation to that document. This testimony has nothing to do
10 with that.
11 JUDGE MOLOTO: You may -- I don't think -- you are not asking for
12 any ruling? No.
13 MR. EMMERSON: I'm simply asking that the -- that counsel do what
14 you've already ordered that they should do, which is to confine the
15 witness's testimony to an explanation of the documents that are being
16 exhibited, none of which notice has been given.
17 JUDGE MOLOTO: Yes, Madam Kravetz.
18 MS. KRAVETZ: Thank you, Your Honour. I just have one
19 clarification, and this is a clarification to the statement.
20 This is Exhibit P121, and if we could go to page 31 in both the
21 English and the B/C/S and I'm looking for -- if we could zoom in the
22 middle of the paragraph 55.
23 Q. I just want to clarify a reference here, and I direct your
24 attention, sir, to Annex 71 --
25 MR. EMMERSON: Sorry -- oh, I do apologise. My mistake.
1 MS. KRAVETZ:
2 Q. -- which is one of the documents we tendered yesterday
3 65 ter 01003, and this is a document dated 6th August 1998, and it says
4 in your statement that it's a DB report on the release of eight Serbs in
5 July 1998 from Jablanica prison. I have a very simple question, sir.
6 Yesterday, we were speaking about a surveillance operation your service
7 conducted in the village of Jablanica in Djakovica municipality. Is the
8 reference to Jablanica in your statement a reference to the same village,
9 or is it a reference to a different village?
10 A. It is the same village.
11 Q. Thank you.
12 MS. KRAVETZ: That's all I had in relation to that paragraph.
13 Thank you, Your Honours, that concludes my direct examination for
14 this witness.
15 JUDGE MOLOTO: Thank you very much.
16 MR. EMMERSON: Could we just revert to that passage from the
17 witness's Rule 65 ter statement, please.
18 JUDGE MOLOTO: Which passage?
19 MR. EMMERSON: The passage which was just on the screen,
20 Your Honour, that Ms. Kravetz was asking about, paragraph 55.
21 Cross-examination by Mr. Emmerson:
22 Q. I want, if I may, just to ask you some brief questions about the
23 first part of paragraph 55.
24 MR. EMMERSON: And, in doing this, I should make it clear to
25 Your Honours that Annex 70 is not tendered by the Prosecution and is not
1 exhibited in these proceedings and that the passage in this statement,
2 though it remains in the statement, is therefore, for the purposes of
3 these proceedings, unsourced nonetheless.
4 Q. Mr. Stijovic, in that statement -- in that passage in
5 paragraph 55, you refer as one of your sources to a statement made by a
6 man called Naser Kalamashi to Djakovica SUP on the 5th of September,
7 1998, concerning the detention of between 17 and 20 people at Jablanica.
8 Do you see that?
9 A. Yes, I do.
10 Q. And you summarise parts of the statement, suggesting that the
11 witness had said to officers of Djakovica SUP that Lahi Brahimaj had
12 constructed a pool in a cellar filled with water and burnt motor oil in
13 which detainees were forced to swim. Do you recall writing that?
14 A. Yes.
15 Q. And then various other details said to come from that witness.
16 MR. EMMERSON: Can I please call up document ID 06 -- sorry,
17 1D06-0037 ET. And if we can just enlarge it a little.
18 Q. This is an English translation, so I'm going to read to you the
19 operative passages so that you can have them in translation, and I'll do
20 so slowly. And perhaps I could ask you and Your Honours to bear in mind
21 the date of the statement that you were referring to at paragraph 55,
22 namely the 5th of September, 1998. This is a statement to the Office of
23 the Prosecutor by Naser Kalamashi, dated the 26th of October, 2006. And
24 if I can then, please, go over to the following page --
25 JUDGE MOLOTO: Yes, Madam Kravetz.
1 MS. KRAVETZ: Your Honour, I believe this document was not
2 notified to us at the beginning of the examination-in-chief of this
4 MR. EMMERSON: Your Honour, Ms. Kravetz is correct that the
5 document was only notified this morning because it was one that we turned
6 up during the course of the witness's evidence, but it is a Prosecution
7 witness statement of which they have been aware throughout both these
8 proceedings and the previous trial. There's no prejudice.
9 MS. KRAVETZ: Well, we should be made aware of documents
10 according to the guide-lines Your Honours have issued, we should be made
11 aware at the beginning of an examination of a witness of the documents
12 the Defence intends to use. The Defence should not be allowed to simply
13 pop up documents when they decide and when they're starting their
14 cross-examination. We had no notice.
15 MR. EMMERSON: It's inevitable that during the course of a
16 witness's testimony issues come up and come to be examined, and this is a
17 document which, as I say, all parties have had and been aware. It's a
18 Prosecution witness statement --
19 JUDGE MOLOTO: But at least if you didn't make the other party
20 aware of it, then you make an application to add it --
21 MR. EMMERSON: Oh, very well.
22 JUDGE MOLOTO: -- which you haven't done.
23 MS. KRAVETZ: And, Your Honour, if I can add to this, this is
24 also a document, given the fact that my learned colleagues were also
25 present in the previous trial when this witness gave evidence, it's also
1 a document they were aware of in the past, so they should have included
2 it on their list. It's not a new document to them.
3 JUDGE MOLOTO: Fair enough. But at least we can't comment on
4 what happened in the previous case. We are concerned about this case.
5 The guide-line does say at the beginning of -- at the taking of the
6 solemn declaration the cross-examining party must give notice of the
7 document. Of course if those documents are -- that notice is not given
8 of a particular document, I think the prudent thing to do is to make an
10 MR. EMMERSON: Your Honour, I apologise for not having done so in
12 JUDGE MOLOTO: Thank you.
13 Yeah, now the problem is what do we do about this. There's an
14 objection against your use of this document because you didn't give
15 notice of it.
16 MR. EMMERSON: I can very easily read from it and without putting
17 the document in I can put the question in.
18 JUDGE MOLOTO: Well, reading from it is using it. You can put
19 the question.
20 MR. EMMERSON: I can put --
21 JUDGE MOLOTO: Do you want to remove it from the screen?
22 MR. EMMERSON: Well, i think it would be easier for Your Honours
23 to follow.
24 JUDGE MOLOTO: But then you are using it.
25 MR. EMMERSON: Exactly so. I don't think -- I mean, if I can say
1 so, the rule is obviously there for a reason.
2 JUDGE MOLOTO: It is there for a reason.
3 MR. EMMERSON: And the reason is to prevent the Prosecution being
4 taken by surprise.
5 JUDGE MOLOTO: Right.
6 MR. EMMERSON: This is not a document that the Prosecution is
7 unaware of. It doesn't take them by surprise. It can be put in the form
8 of a question where I simply read the operative passages from the witness
9 statement and say -- and ask the question to the witness and then invite
10 Your Honours at a later stage to admit it, or we can deal with it in a
11 more convenient form which affords no prejudice to anybody. But I am in
12 Your Honours' hands. I would invite you simply to allow me to continue
13 with the cross-examination. It is very difficult to see what prejudice
14 the Prosecution has suffered if it had been -- it's a purely technical
15 objection. If it had been notified yesterday afternoon rather than this
16 morning, Ms. Kravetz wouldn't have in any way altered the shape of her
17 testimony -- of her evidence in chief and neither would she have had an
18 opportunity to discuss it with the witness because the very purpose of
19 the ruling is to ensure that that does not occur. So there's absolutely
20 no prejudice. It is a purely technical objection. It is capable of
21 being overcome by a rather cumbersome procedure of me simply reading it
22 out. But I would respectfully suggest that the rule needs to be applied
23 purposefully. The object is to prevent ambush so that the Prosecution
24 has an opportunity to consider its position.
25 JUDGE MOLOTO: Fine. You use it, but make sure that next time
1 you make an application.
2 MR. EMMERSON: I'm very grateful to Your Honour.
3 Can we have it back on the screen, please.
4 Q. If we can pick it up at paragraph 9, first of all, Mr. Kalamashi
5 tells the Office of the Prosecutor, and I'll read this slowly for you so
6 that it can be interpreted:
7 "I have never been a member of the KLA. I have no political
9 "Kodralija village never experienced the slightest KLA activities
10 and I am hundred per cent sure that nobody in the village was KLA active
11 or passive member.
12 "On the 3rd of September, 1998," that, just to remind you,
13 Mr. Stijovic, is just two days before the statement you were drawing your
14 intelligence from.
15 "On the 3rd of September, 1998, I was arrested and sentenced with
16 one and a half years of imprisonment for illegal possession of weapons.
17 Otherwise, I have no criminal background.
18 "I would like to provide the ICTY representatives with more
19 details regarding my arrest as mentioned above.
20 "On 3rd of September, 1998, I remember the intensive offensive of
21 Serbian forces took place in" our "area. The operation affected the
22 villages of Bec, Kodrali, Rashkoc, Cermjan, and many others in our
23 municipality. We were afraid to stay at home, since the house might be a
24 target of shelling; therefore, our family was gathered in the field 300
25 metres far from my house.
1 "We were siege by the Serbian army and police, and the males were
2 ordered to take off the clothing and staying in underwears. In front of
3 our family members, we were beaten with butts of Kalashnikovs, kicking by
4 boots, and the Serbs were jumping on our backs, as we were ordered to lie
5 down. Then we ... gathered on the road and this time we were beaten by
6 paramilitary members. I believe that they were paramilitaries because
7 they wore different camouflage uniforms than the police and army and wore
8 red and black coloured bandannas over their heads. We were again beaten
9 the same way as the army ..."
10 Now, can I pause there. Can I take it, Mr. Stijovic, that you
11 are familiar with the testimony that was given in the previous Haradinaj
13 MS. KRAVETZ: I'm sorry, that question is a bit vague.
14 MR. EMMERSON: Let me put the question more specifically.
15 MS. KRAVETZ: Which testimony are you referring to?
16 MR. EMMERSON: Let me put the question more specifically.
17 Q. Have you studied, either during the course of the Haradinaj trial
18 or since then, evidence given in that trial by anyone other than
20 A. I do not understand the question.
21 Q. Have you read or followed the testimony of any witness who gave
22 evidence in the previous trial?
23 A. Yes.
24 Q. And one would imagine, given your role as an intelligence
25 officer, that you would follow that evidence; correct?
1 A. I'm retired now, but I'm interested in the situation and
2 everything going on in Kosovo so I follow things.
3 Q. And did you follow the testimony of Nebojsa Avramovic, the
4 officer from Djakovica SUP who took these 11 men into custody?
5 A. No, I did not --
6 Q. Well --
7 A. -- nor am I -- nor do I know that person.
8 Q. Well, as the Trial Chamber will, in due course, be aware, the SUP
9 officer confirmed that 11 men were brought in on the 3rd of September
10 wearing underclothes --
11 MS. KRAVETZ: Your Honour, I don't mean to interrupt
12 Mr. Emmerson. If we're going to be referring to previous testimony of a
13 witness, we need references so we can all follow what Mr. Emmerson is
14 reading. Also, I don't find it appropriate that he's putting testimony
15 of a different person just like that to the witness without indicating
16 exactly what he's meaning to --
17 MR. EMMERSON: I'll indicated what I'm meaning as the questions
18 evolve, that's the purpose of cross-examination. But as to the objection
19 that I shouldn't be putting other people's testimony to this witness,
20 given that that's the sole purpose of this witness being called by the
21 Prosecution, namely to put other person's often unsourced and secondary
22 hearsay accounts through him, it's a rather strange objection to be
23 putting. The relevance will become completely obvious. The transcript
24 reference I'm dealing with is 6626, line 20; 6621, line 1; and 6622,
25 line 15.
1 Q. So that we're clear, the senior officer at Djakovica SUP who
2 received these men gave evidence that they were brought in in their
3 underwears, as Mr. Kalamashi's witness statement attests. Were you aware
4 of that, that the man whose statement you referred to was brought in
5 custody in his underwear?
6 A. No, I was not aware. I -- I had not heard of that type of
8 Q. So that would be quite wrong, would it, if they had been beaten
9 at the scene and taken in in their underwear before making the statement
10 that you rely on, that would be quite wrong, do you agree?
11 JUDGE DELVOIE: Mr. Emmerson, you're adding -- you're adding the
12 beating --
13 MR. EMMERSON: Well, the beating is in the passage in the
14 statement I've just read.
15 JUDGE DELVOIE: Oh, I didn't hear that. Thank you.
16 MR. EMMERSON: The witness statement says he was beaten and with
17 other men stripped naked.
18 JUDGE DELVOIE: Yeah, in this -- in this statement.
19 MR. EMMERSON: Yes.
20 JUDGE DELVOIE: -- yes, but not in the statement of Mr. -- what
21 is his name, the other ...
22 MR. EMMERSON: Avramovic.
23 JUDGE DELVOIE: Avramovic.
24 MR. EMMERSON: I'm coming to that, if I may. Because what
25 Mr. Avramovic testified when asked whether they had been beaten is: Was
1 it is possible that they had been?
2 Q. Now, can I ask you: Would it be completely wrong if those men
3 were taken into custody in their underwear having been beaten?
4 JUDGE MOLOTO: Well, when you say "completely wrong,"
5 Mr. Emmerson, what do you mean, morally wrong or incorrect? Is it
6 incorrect that that happened?
7 MR. EMMERSON: Let me put the question to the witness in an open
8 form so he can answer it.
9 Q. Would it be appropriate, in your view, for these men to have been
10 taken into custody in their underwear? Stripped naked, in other words,
11 by Serbian police and then taken into custody in their underwear. Would
12 that be right or wrong in your view?
13 A. With all due respect, if what you're saying is true, I think that
14 it is not right.
15 Q. Thank you. And if what the senior SUP officer said in his
16 evidence at the last trial was true, then what I've just put to you is
17 true. So you can -- you can confirm to me that from the outset of the
18 time in custody these men were being treated in a manner you regard as
19 not right; is that correct?
20 JUDGE MOLOTO: Yes, Madam Kravetz.
21 MS. KRAVETZ: The witness is in no position to confirm that.
22 He's just been put the testimony of another witness and he's given the
23 answer as -- he's explained as much as he knows, but he's in no position
24 to be able to confirm.
25 MR. EMMERSON: I accept the complaint. I accept the challenge.
1 Can I put another question in another way, a different question to you.
2 JUDGE MOLOTO: It was hypothetical, if what the [indiscernible]
3 said --
4 MR. EMMERSON: Well, except that both parties to the incident say
5 that's what happened.
6 Q. And perhaps the crucial question, Mr. Stijovic, is: You don't
7 really know anything about the circumstances surrounding this, do you?
8 A. What you have just put to me as a question is something about
9 which I have no knowledge. I don't know if it happened, but if it
10 happened then it wasn't okay.
11 Q. That's very helpful. If it happened in the way described both by
12 the police officer and the suspect, then obviously it wasn't okay. But
13 do I understand the position to be: You don't really know anything about
14 the circumstances of these men's detention; is that right?
15 MS. KRAVETZ: The witness has already answered the question.
16 MR. EMMERSON: Well, can I have it clearly on the record.
17 JUDGE MOLOTO: Detention where?
18 MR. EMMERSON: Detention in SUP Djakovica during the period of
19 time when the witness statement that the witness was summarising was
21 Q. You don't know what was done to them, if anything, before that
22 statement was taken, do you?
23 A. What I do know is that Naser Kalamashi's statement was taken in
24 the Djakovica SUP, and I think I said that in my previous statement and I
25 indicated which information had reached me from the Djakovica SUP. What
1 was going on there, and if it's correct what that police inspector said,
2 this senior officer, and what this statement and other statements say,
3 well that's something that I really cannot answer.
4 Q. So you can't confirm one way or the other whether these men were
5 tortured before they made their statements? You can't confirm that one
6 way or the other?
7 JUDGE MOLOTO: Madam Kravetz.
8 MS. KRAVETZ: Your Honour, I object to that question. First of
9 all, the basis for -- there is no basis for this. My learned colleague
10 has quoted only a portion of the statement of --
11 MR. EMMERSON: I'm coming on to the rest.
12 MS. KRAVETZ: -- Mr. Avramovic in the previous case. He
13 indicated that these persons were stripped-down to their underwear to be
14 searched for weapons. Where this reference to torture comes from is not
15 clear to me at the moment, and I don't -- I find it completely
16 inappropriate that the witness was asked [Overlapping speakers] ... about
17 it when he already stated that he knows nothing about it.
18 MR. EMMERSON: Let me ask the questions in a different order, if
19 my learned colleague is concerned about the source.
20 JUDGE MOLOTO: Thank you.
21 MR. EMMERSON: Perhaps we can go back to the statement, please,
22 and pick it up at paragraph 15 at the bottom of the stage after the men
23 had been stripped naked and beaten:
24 Q. "We had to get on trucks and halfway to Gjakove the police came
25 and we were ordered to get on police jeeps and taken to Djakovica SUP,
1 then we were kept in the basement of the SUP premises for the following
2 three days under constant beatings and torture. The police were coming
3 to the basement and taking one by one for questioning. The interviews
4 took place in the office on the 4th or 5th floor. I was arrested and
5 kept there with other 11 co-villagers.
6 "When I had been taken for interview in the office" --
7 JUDGE MOLOTO: Are you going to read the whole thing?
8 MR. EMMERSON: Yes, I am because it's obviously been translated
9 for the witness.
10 JUDGE MOLOTO: I beg your pardon.
11 MR. EMMERSON:
12 Q. "When I had been taken for interview in the office was sitting a
13 man in civilian and asking questions in Serbian language. The only
14 phrases he used in Albanian were as follows: 'Why are lying to us that
15 you had not been KLA? Did you have an arm? Fuck your mother.' Then all
16 questions were only in Serbian language which I did not understand. I
17 had been interviewed for about ten of times but in different offices of
18 Djakovica SUP HQ. But the interviewer was always the same and did not
19 make any written notes.
20 "During the interviews, apart from the interviewer, there were
21 always present two other civilians who were beating me with baseball bats
22 all over my body. On the 6th of September," that's the day after the
23 statement you refer to, "I recall that a man, I do not remember whether
24 in uniform or civilian clothing, came to the basement and ordered us to
25 sign some document. We were asking if he has translator to read us what
1 we are going to sign. The man replied: 'You will see translator.' Then
2 we were beaten again and forced to sign document without knowing the
4 "In October 2006, the ICTY ... read over to me a statement
5 registered in the ICTY archives ... as I already said, it could be the
6 same as I signed in the premises of SUP in Djakovica because I did never
7 sign any other document. But I would like to raise my objections
8 regarding the fact that I signed only one page. But the statement with
9 the content I was acknowledged today is consisting of four pages. I
10 would like to stress that there is no one word of true. I did not say
11 anything what was mentioned in this statement as below ..."
12 Now, if I've understood what you've told us already, correct me,
13 Mr. Stijovic, you know nothing about the circumstances in which these men
14 were detained; correct?
15 A. First of all, I don't know that they were detained. I don't have
16 any information to that effect.
17 Q. Well, there's, as I said to you, testimony from the senior
18 officer at SUP Djakovica that they were detained as well as the evidence
19 in the statement you read. But the question I'm asking you is: If they
20 were detained when the statement was taken that you relied upon, you
21 don't know whether they were tortured or not, do you?
22 A. Well, I don't know, but if you permit me, Your Honours, to say
23 just a couple of sentences.
24 Q. Well, are they an answer to the question? I mean, I thought
25 you'd answered the question. You don't know one way or the other; is
1 that right? I mean, a minute ago you told us you didn't know anything
2 about the detention, Mr. Stijovic. Did you or didn't you?
3 A. Your Honours, this is a complex question. I cannot reply with a
4 yes or a no to this question. If you permit me to say a couple of
5 sentences, perhaps it will be clearer, with all due respect,
6 Mr. Emmerson.
7 Q. Before you do, Mr. Stijovic, before you add whatever it is you
8 want to add, it is a very simple question and it is capable of an answer,
9 yes or no. Do you know anything of the circumstances of the detention of
10 these 11 men including Naser Kalamashi between the 3rd and the 6th of
11 September, 1998? Do you know how they were treated during those three
12 days, yes or no?
13 A. No.
14 Q. Thank you. So when you summarised the content of the statement
15 and put forward its contents as reliable, you have no idea whether
16 they're reliable or not, do you?
17 A. No.
18 Q. Thank you.
19 JUDGE MOLOTO: I guess that's the end of your cross-examination?
20 MR. EMMERSON: Your Honour, yes.
21 JUDGE MOLOTO: Thank you so much. Let the record show that.
22 Mr. Guy-Smith.
23 MR. GUY-SMITH: I remain in the same position that I was in prior
24 to this gentleman taking the stand, and I reserve my right to
1 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
2 MR. GUY-SMITH: So I take it he will be subject to re-call at
3 some point in time.
4 JUDGE MOLOTO: He will have to be.
5 MR. GUY-SMITH: Thank you.
6 JUDGE MOLOTO: Thank you so much.
7 Yes, Mr. Harvey.
8 MR. HARVEY: Your Honour, I have some questions I can ask now,
9 but I will also reserve my right to re-call this witness should
10 additional information arise as a result of the inquiries that
11 Mr. Guy-Smith has been making and which I have been supporting. May I --
12 could you give me just one moment to grab the -- I think there's a podium
13 there that would be helpful to me.
14 JUDGE MOLOTO: By all means.
15 MR. HARVEY: There we go.
16 Cross-examination by Mr. Harvey:
17 Q. Good morning, Mr. Stijovic. My name is Richard Harvey. I have
18 the honour to represent Lahi Brahimaj. Let me just ask you, first of
19 all, a little about the basis on which those working with you, under you,
20 those who provided you with information, the basis on which that
21 information was obtained. First of all, you used blackmail, did you not?
22 A. No.
23 Q. Please understand, Witness, when I say "you" in this context, I
24 mean "you" collectively, the service for which you worked. You
25 blackmailed witnesses into giving you information, did you not?
1 A. With all due respect, in my previous testimony I talked about
2 motives and how, in what way, the State Security Service got informants.
3 You took a part of my explanation out of context and are insisting on
4 that term, but my answer to that is no and I can explain the whole thing.
5 Q. Well, Witness, I think your --
6 MR. HARVEY: If we could have, please - yes, thank you - 04049,
7 please, and if we could have page 18.
8 THE REGISTRAR: Your Honours, for the record, the document is
9 Exhibit P122.
10 JUDGE MOLOTO: Thank you so much.
11 MR. HARVEY: Thank you.
12 JUDGE MOLOTO: Thank you so much.
13 MR. HARVEY:
14 Q. Witness, if you could -- I could just read to you from the bottom
15 of that page your answer at line 18:
16 "A. We would create a compromising information -- or rather,
17 compromising documents on the activity of a certain person. If it
18 related to the co-operation with the KLA, then that was the information
19 that we gained about these persons directly participating in KLA
20 activities, in crimes, in criminal activities. And given the position
21 that these people had within the KLA -- they were quite at a high level
22 and were able to provide very important and relevant information to us.
23 Then based on that, we would recruit them and introduce them to the
25 Over the page, please.
1 "We would confront them with the information that we had about
2 the incriminating activities that they were involved with, and then we
3 asked them to do something for us in exchange for not being prosecuted,
4 and they would do these things under the supervision and under the
5 control of the State Security Service."
6 Would you agree that that was blackmail?
7 A. Perhaps the term "blackmail" is not quite appropriate in the
8 sense of that meaning, but the answer does reflect one of the ways in
9 which we recruited informants from the KLA to work for our interests.
10 Q. Let's go back to page 17, please. Thank you.
11 Again your answer at the bottom of that page:
12 "The motivation of these people in their work for the
13 State Security Service was diverse, just like anywhere else. The basic
14 element was money. The second possible motive was of a political nature,
15 where they did not agree or they disapproved of various activities. And
16 the third motive was to compromise somebody. If somebody -- if we had
17 information about somebody that was of a compromising nature, then we
18 would" over the page, please, "resort to blackmailing. I'm using that
19 term because this is what it amounts to everywhere else in the world."
20 Now, Witness, do you wish to change the answer you gave this
21 Court a short while ago?
22 A. Well, perhaps clarify it. Yesterday, in answer to the question,
23 Did I listen to the transcript, I did. I listened to 20 hours of audio,
24 and I said yesterday perhaps that I would change the wording of some
25 things, and you can check that. I said that in the transcript. I can
1 clarify this particular matter if it's imprecise, if you insist on that
2 particular detail with an illustration of a classic example.
3 Q. Witness, I'm not asking you --
4 MR. HARVEY: I'm sorry, Your Honour.
5 JUDGE MOLOTO: Mr. Harvey, I realise you are probably going to be
6 some time with this witness on this point.
7 MR. HARVEY: Yes.
8 JUDGE MOLOTO: Is that --
9 MR. HARVEY: Sorry, yes.
10 JUDGE MOLOTO: And I know this may be an inopportune moment, but
11 it's the time. Would you like to continue after the break?
12 MR. HARVEY: That's fine with me, Your Honour.
13 JUDGE MOLOTO: Thank you very much. We will take a break and
14 come back at quarter to 11.00. But before we take the break, may the
15 witness please be excused.
16 [The witness stands down]
17 JUDGE MOLOTO: Thank you so much.
18 We'll take a break and come back at quarter to 11.00.
19 --- Recess taken at 10.16 a.m.
20 --- On resuming at 10.46 a.m.
21 JUDGE MOLOTO: Mr. Harvey.
22 MR. HARVEY: Yes, Your Honour.
23 JUDGE MOLOTO: You may proceed -- I beg your pardon.
24 MR. HARVEY: I will do as soon as there's someone to proceed
1 JUDGE MOLOTO: My apologies, Mr. Harvey.
2 May the witness please be brought in.
3 MR. HARVEY: I might get further this way, of course.
4 JUDGE MOLOTO: Indeed. It's ...
5 [The witness takes the stand]
6 JUDGE MOLOTO: You may now proceed.
7 MR. HARVEY: Thank you, Your Honours.
8 Q. Mr. Stijovic, one of the means of information-gathering that you
9 used was electronic surveillance and listening to telephones; is that
11 A. That is correct, yes.
12 Q. Thank you. Specifically you said that you monitored telephone
13 conversations of Lahi Brahimaj; is that correct?
14 A. That is correct, yes. We specifically listened in on the
15 telephone used by his mother in his family home.
16 Q. Thank you for that. And did that continue throughout until the
17 month of August 1998?
18 A. No.
19 Q. When did it stop?
20 A. In April or May, the reports became less frequent and then there
21 was this police and army operation to break-up the strongholds of the
22 KLA. So then there was no more need to monitor the phones.
23 Q. Well, excuse me, the operation to break-up the stronghold in
24 Jabllanice took place at the beginning of August of 1998; is that not
1 A. Well, in order to be precise, sir, this was an operation carried
2 out by the police and the army which began in June 1998, and it finished
3 in late August/early September in that border area towards Jablanica,
4 towards Albania, Jablanica, Junik, and so on. So the operation finished
5 in late August and early September.
6 Q. Would you agree that the forces that you have just mentioned, the
7 forces of the police and the army, did not enter Jabllanice before August
8 of 1998?
9 A. Yes.
10 Q. And so, would you accept, therefore, that you would have
11 continued to listen to and monitor the telephone usage of the Brahimaj
12 family until that time?
13 A. Sir, Your Honours, I said that until April/May we had certain
14 information which were of interest and useful to us. After that, these
15 reports became less frequent, and it was obvious that the other side
16 assumed or knew that their phone conversations were being monitored. So
17 the things that we were getting were of less importance to us.
18 JUDGE MOLOTO: Yes, but that's not the answer to the question,
19 Mr. Stijovic. The question was: Would you accept that you would have
20 continued to listen to and monitor the telephone usage of the Brahimaj
21 family until that time, that time being August 1998. You should either
22 be saying: Yes, we did; or no, we didn't.
23 THE WITNESS: [Interpretation] I apologise, Your Honour. Yes.
24 MR. HARVEY: Thank you.
25 Q. And you've also told us, I believe, that if not on this occasion
1 but on the last occasion when you testified, you said that Lahi Brahimaj
2 could not move by day because of your surveillance techniques; he had to
3 confine his movements to moving by night; is that correct?
4 MS. KRAVETZ: Could we just have a reference to the passage my
5 learned colleague is citing to. Thank you.
6 JUDGE MOLOTO: Mr. Harvey.
7 MR. HARVEY: Just give me one moment. It would be at page 9244
8 of the transcript which is at page 358 of Exhibit 04049.
9 "He was not allowed to leave Jablanica, but rather --
10 "He was not allowed to leave Jablanica, but rather only moved
11 overnight in the surrounding villages."
12 Q. Is that the position, that he was only able to move at
13 night-time, as far as you were concerned?
14 A. No. I'm saying what you read about what I said in my previous
16 Q. I'm sorry, I don't understand your answer. Is your previous
17 testimony on this point correct?
18 A. That is correct.
19 Q. Thank you. Were you also monitoring radio telephones used by
20 Mr. Brahimaj?
21 A. We monitored the telephones and the radio traffic used -- that
22 was used. I don't know whether that was his personal phone or not.
23 Q. And you were asked on the last occasion - I'm looking at page
24 8915 of the transcript, which is at page 48 of Exhibit 04049 - you were
25 asked last time:
1 "What happened to the transcripts or the tapes of the
2 conversations, telephone conversations and electronic surveillance, that
3 you listened to?"
4 And you gave this answer:
5 "I can't give you an answer to that question. I know that these
6 documents and transcripts were made, that there are recordings of these
7 conversations, and as to where they are located, I wouldn't be able to
8 say. I think you need to direct that question to the authorities in
9 Belgrade and ask them where this documentation is located."
10 You were further asked:
11 "Do you believe them still to exist?"
12 And you responded:
13 "I am convinced that a large portion of these documents exists.
14 I know that in the eve of the bombing, we pulled out quite a lot of
15 documents from Kosovo and Metohija and we moved them to safe areas in" --
16 I'm sorry, I don't have the next page, I think it's Belgrade.
17 Anyway, do you recall being asked those questions and giving
18 those answers?
19 A. I do remember that.
20 Q. And have you made any attempt to check on whether those
21 transcripts or tape-recordings do still exist, since you testified last
22 time in preparation for your testimony today?
23 A. No.
24 Q. You would have known as a result of listening to telephone
25 communications when Mr. Brahimaj was in Jabllanice and when he wasn't in
1 Jabllanice to a reasonable extent; is that correct?
2 A. Yes, you're correct.
3 Q. And you would also have known -- well, let me ask it this way:
4 Did you monitor the communications from the General Staff of the KLA in
5 the Berisha mountains area?
6 A. The main KLA staff was at Mount Berisa at one point, but it was
7 very mobile. It moved around in the Drenica area. So the direct answer
8 to this question would be: Yes, we did monitor them.
9 Q. And you were aware that Lahi Brahimaj was a member of that
10 General Staff, weren't you?
11 A. No, he wasn't in the KLA Main Staff. He was an officer,
12 so-called liaison officer, between the Dukadjin Operative Zone and the
13 KLA Main Staff.
14 Q. Are you not aware that he was a member of the General Staff in
15 charge of logistics and finances?
16 A. No, he was not in the KLA Main Staff. That I know.
17 Q. Did you follow the evidence given by Mr. Zyrapi in the last
19 A. No, I did not.
20 Q. Perhaps you'll stay on and listen to his evidence today then.
21 Thank you.
22 May I ask you this: As you were listening to the telephone of
23 Lahi Brahimaj's mother, you - and I mean collectively you in the RDB and
24 the other forces of the Serb Republic - you must have been aware that she
25 and her 105-year-old mother were alone in the house when Serb forces
1 attacked at the beginning of August; isn't that correct?
2 A. No, it is not correct. It is not correct that we wire-tapped
3 Lahi Brahimaj's mother's telephone. We wire-tapped the family telephone
4 because of Lahi Brahimaj, because of him, not because of his mother or
5 because of this elderly lady.
6 Q. Let me repeat my question: By tapping that phone, you must have
7 been aware that Mr. Brahimaj's elderly mother and extremely elderly
8 grandmother were alone in that house at the time that Serb forces
9 attacked Jabllanice at the beginning of August 1998; isn't that true?
10 A. It is not true. Based on tapping a phone, you cannot know who
11 else is in the house unless the person speaking on the phone says so.
12 The only thing that you can hear is what that person says and the person
13 at the other end and what -- the things they say.
14 Q. And based on not only the telephone tapping, but the other
15 surveillance methods that you employed, you must have been aware that the
16 KLA had effectively left Jabllanice at the time of the attack in August
17 of 1998, mustn't you?
18 A. The KLA withdrew from Jablanica. They had withdrawn. But they
19 were present in the neighbouring villages. They moved in reaction to the
20 movements of the forces of the police in that area.
21 Q. And who was in charge of the operation to attack Jabllanice?
22 A. I do not know who was in charge --
23 Q. Were you involved in the planning of that operation?
24 A. Yes, but not only the Jablanica operation. There was a joint
25 staff made up of members of the MUP and the army at Kosovo level, and
1 they co-ordinated the actions. The individual actions in the field were
2 in charge of operative commanders. I don't know who the commander of the
3 unit was that was active in any particular area.
4 Q. Would it be accurate to say that Lahi Brahimaj and his family
5 were a specific target of that operation?
6 A. No. One couldn't put it that way.
7 Q. One specific target, not the specific target, of attacking
8 Jabllanice was to take out the Brahimaj family, wasn't it?
9 A. No, that is not correct.
10 Q. You used the term "liquidate" this morning at page 4 of your
11 testimony in relation to people bringing arms into the country. This was
12 an operation to liquidate the KLA in Jabllanice, wasn't it?
13 A. Yes, that is more precise. It was indeed an operation, the
14 purpose of which was to destroy, or liquidate - or whichever term you
15 prefer to use - for the destruction of the KLA forces that were active in
16 that area, to rout them and destroy them. And you can choose whichever
17 term you prefer to describe it.
18 Q. And was it part of the plan that if you couldn't liquidate the
19 KLA, you would ensure that anybody in Lahi Brahimaj's family, including
20 his mother and his grandmother, would be murdered in cold blood?
21 A. No, that is an ugly insinuation, sir.
22 Q. The ugly thing is that they were cut to pieces and murdered in
23 the most horrific fashion, and you know that, don't you, sir?
24 A. I'm very sorry, sir, but I heard it from you or one of your
25 colleagues from the Defence. I was unaware of that and I am indeed sorry
1 if such a thing happened.
2 Q. No investigation took place under your direction into any - and
3 I'll use a nice word - misconduct by the troops who invaded Jabllanice,
4 did it? No investigation took place?
5 JUDGE DELVOIE: Mr. Harvey.
6 MR. HARVEY: Yes, Your Honour.
7 JUDGE DELVOIE: I find it rather confusing especially at this
8 moment in your cross-examination, the way you use the word "you."
9 Sometimes it's the service and sometimes it's this witness.
10 MR. HARVEY: It's a fault of the English language.
11 JUDGE DELVOIE: Would you please make the distinction.
12 MR. HARVEY: If we were speaking French, it would be much easier.
13 JUDGE DELVOIE: Could be.
14 MR. HARVEY:
15 Q. You -- when I use "you," of course I know that you personally as
16 an individual did not enter Jabllanice; I am correct in that, aren't I?
17 A. Yes.
18 Q. You understood that when I was saying "you" in this context, I
19 was referring to "you" collectively as the group responsible for that
20 attack in which you individually played a role in the planning?
21 A. That is not how I understood you. I understood what you said as
22 something very bad, indeed. And in my previous testimony, I said what I
23 knew about this event. Only in 2007, before Judges of this Tribunal, I
24 said that I only then heard of the event, if it indeed ever happened.
25 Q. Just briefly in relation to the Law on Criminal Procedure of the
1 Republic of Serbia. That gave you and those who worked with you the
2 power to hold people for 72 hours, and, in fact, that could be extended
3 to a total of 96 hours for interrogation. That's correct, isn't it?
4 A. That law was in force at the time, I mean the Law on Criminal
5 Procedure, and, yes, it is correct.
6 Q. And people were interrogated for periods of four days, 96 hours?
7 A. You know well that it is very difficult to interrogate somebody
8 for 96 hours. That's the total period of time that person spent on the
9 premises of the police. The interrogation itself was much shorter. It
10 depended on the mental and physical abilities of the person in question.
11 You would have to be Superman to interrogate somebody for 96 hours or to
12 answer -- to be interrogated for that period of time.
13 Q. Yes, you would interrogate them certainly from 8.00 in the
14 morning until 10.00 at night; that happened, didn't it, for four
15 consecutive days?
16 A. There were such situations. In a situation like that, we were
17 mindful of the physical and mental condition of the person in question,
18 and depending on that the -- our staff who conducted the interrogation
19 would adapt the process. But yes, there were situations like that.
20 Q. And you're well aware that many complaints were made of people
21 being tortured physically, brutally beaten in the course of such very
22 intensive interrogations. You're well aware of those complaints, aren't
23 you? Whether you believe them or not, you're aware that complaints were
25 JUDGE DELVOIE: Mr. Harvey, is this you personally or --
1 MR. HARVEY: This is you personally.
2 JUDGE DELVOIE: Could I suggest to avoid this kind of confusion
3 that you use "your services" when you don't mean you personally, for
4 instance, or something like that. Because it's really confusing, you
6 MR. HARVEY: I'll try, and I apologise for any confusion I may
7 have caused.
8 Q. You personally were aware of complaints of torture, weren't you?
9 A. Yes, there were such complaints, but, for example,
10 Naser Kalamashi never complained in 2000 or 2001 or 2002, 2003, or 2004.
11 Only in 2006 did he deny what he had said earlier.
12 Q. He didn't complain to his torturers, no.
13 MR. HARVEY: Thank you, I have no further questions.
14 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
15 Madam Kravetz, any re-examination?
16 MS. KRAVETZ: I do have some questions, Your Honour. I do want
17 to point out that since my learned colleagues have reserved the right for
18 further cross-examination, I'll just be cross-examining on the questions
19 put to the witness today, but there may be need for further
20 re-examination at a later stage if the witness is re-called.
21 JUDGE MOLOTO: I understand that.
22 Re-examination by Ms. Kravetz:
23 Q. Sir, today, my colleague, Mr. Harvey, put a series of questions
24 to you - and it starts at page 35 of the transcript and goes on to
25 page 36 - in relation to a statement you made in your previous testimony
1 in the Haradinaj trial to the use of -- or resort to blackmailing. And
2 I'm reading from page 36 of the transcript, lines 11 and 12, you said:
3 "I can clarify this particular matter, if it's imprecise, if you
4 insist on that particular detail with an illustration of a classical
6 I wanted to ask you, sir, if you could clarify and indicate what
7 you meant, actually, by the use of this?
8 A. Instead of the word "blackmail," you could use the word "choice."
9 If we suppose a hypothetical situation in which there are persons A and B
10 who are members of the KLA and they are friends --
11 MR. HARVEY: Your Honours, I'm sorry. The witness is now
12 starting to talk in terms of "if you suppose." We don't -- we're not
13 here for fairytales, we're here for evidence, with respect.
14 JUDGE MOLOTO: Madam Kravetz.
15 MS. KRAVETZ:
16 Q. Sir, I'm asking -- you indicated that you wanted the opportunity
17 to clarify this reference you had made earlier with an illustration of a
18 classic example, and I just wanted you to clarify that, as you had
19 indicated in response to questions of my colleague, Mr. Harvey.
20 A. I was going to do that, so if you allow me to finish.
21 Persons A and B are KLA members. B is married and in prison due
22 to his activities. The State Security Service gets information and has
23 documentary proof of a close relationship between persons A and B. We
24 draft documents about that and face person A with the information we have
25 and tell that person that we will inform the spouse of person B. And
1 that is how we got information. So we gave a person a choice whether
2 they would opt for a conflict with the family or the alternative, but
3 there were also other situations in which a person commits a misdemeanour
4 against law and order and that person works abroad. For that reason,
5 a -- the -- their passport is taken away from them and that is why the
6 person cannot return in time to his or her work-place in western Europe.
7 We, as the State Security Service, were able to be lenient and
8 return the passport to that person in time for them to return to their
9 work-place. If that is blackmail, all right. This is one of the methods
10 we applied. Is that blackmail or facing -- or offering a choice to a
11 person is something that's open to interpretation. I don't know if I was
12 clear enough.
13 MR. EMMERSON: Your Honour, just before Ms. Kravetz continues and
14 it may have been entirely obvious to Your Honours what it was the witness
15 was trying to say between lines 5 and line 15, but I think he may have
16 got his As and Bs mixed up. Because if one reads the transcript, he
17 talks about the State Security Services knowing about a relationship, a
18 close relationship between A and B, and it is hypothetical A and B were
19 the two KLA members, rather than the spouse and the other one. I think
20 it may be obvious what he meant --
21 JUDGE MOLOTO: And I think we heard what he said.
22 All I just wanted to ask you, Mr. Stijovic, is: In that example
23 of A and B, that whole exercise -- that whole explanation, that whole
24 situation that you explained to us, what do you call that in one word?
25 THE WITNESS: [Interpretation] I call it choice. Either you'll
1 work for us or we will disclose all this -- all these immoral things to
2 your friend --
3 JUDGE MOLOTO: My question was in one word. You said "choice."
4 Thank you so much.
5 THE INTERPRETER: Interpreter's correction: The relationship was
6 between the wife of A and B.
7 THE WITNESS: [Interpretation] You can call it blackmail. It only
8 occurred to me now. I'm trying to find another appropriate term in
9 Serbian but I'm unable to.
10 JUDGE MOLOTO: I'm not asking you what I could call it. I'm
11 asking you what you call it in one word.
12 THE WITNESS: [Interpretation] Blackmail.
13 JUDGE MOLOTO: Thank you.
14 MS. KRAVETZ:
15 Q. Sir, you were asked a series of questions about the witness
16 statement of Naser Kalamashi, which is referred to in your -- your own
17 witness statement. When your service obtained information through
18 witness statements, was there a process through which your service
19 verified or cross-checked the information contained in those statements;
20 and if yes, could you explain what that process was?
21 A. Yes, there was a procedure and talking about the statement of
22 Mr. Kalamashi that we got through the SUP of Djakovica, it was important
23 for us to learn that there was a prison at Jablanica. Through other
24 activities, that is, interviews with other sources and other information,
25 we verified the truthfulness of the information about there being a
1 prison at Jablanica. Some Serbs, Montenegrins, Roma, and Albanians had
2 been kidnapped and abducted. To me as an analysis, that information was
3 extremely important, the existence of a prison where there were kidnapped
4 persons and that prison being in the village of Jablanica. That
5 information was additionally checked through live sources, through
6 technical means, and everything that the State Security Service could
7 resort to.
8 JUDGE MOLOTO: Mr. Guy-Smith.
9 MR. GUY-SMITH: Yes, excuse me, Your Honour. Just for purposes
10 of clarity of the record, there's an acronym which is going to be used
11 here which is SUP. I'm wondering if we could get some just clarification
12 of what that means specifically. I believe there are a number of
13 acronyms that have been used by this gentleman with regard to his
14 testimony, SUP, MUP, and some others things, which people may internally
15 have knowledge of, but they may not necessarily be reflected in the
16 record so that the Chamber is aware specifically of what these entities
17 mean. The reason I think that could be of some importance goes directly
18 to some of the questions Judge Delvoie was asking with regard to the
19 issue of "you."
20 JUDGE MOLOTO: Thank you so much, we will do that.
21 Mr. Stijovic, what does the acronym SUP stand for?
22 THE WITNESS: [Interpretation] SUP stands for secretariat of the
23 interior in Djakovica. There was a Ministry of the Interior of the
24 Republic of Serbia which had two departments: One was public security,
25 and the lower organisational units of which were the SUPs; and there was
1 the department of state security, which had as lower-ranking units
2 centres of state security.
3 JUDGE MOLOTO: And what were they called?
4 THE WITNESS: [Interpretation] You mean the state security
6 JUDGE MOLOTO: The lower-ranking units centres of the state
7 security, what were they called? You told us the other were called SUP.
8 THE WITNESS: [Interpretation] Centres. Centres of the state
9 security department. For -- to clarify for the gentleman, the MUP of the
10 Republic of Serbia had SUPs, that is, secretariats of the interior; below
11 which there are OUPs, organs of the interior; and below that, there
12 are --
13 THE INTERPRETER: Could the witness please slow down and repeat.
14 JUDGE MOLOTO: The interpreter says: Could you please slow down.
15 He's struggling to keep pace with you. Then you have introduced a couple
16 of other acronyms now and I would like to hand you back to Madam Kravetz.
17 You were stopped where you were saying "below which there are OUPs,
18 organs of the interior; and below that, there are ..."
19 Can you continue from there?
20 MS. KRAVETZ:
21 Q. You can continue, sir. You were talking about OUPs, and "below
22 that, there are ...," and just complete your answer.
23 A. Police departments. Below the OUPs, there were police
25 Q. Thank you, that clarifies that. I want to go back to the answer
1 you gave when I asked you whether the information was verified or
2 cross-checked. You said at lines 7 and 8 of page 50, you said:
3 "Through other activities, that is, interviews of other sources
4 and other information, we verified the truthfulness of their information
5 about there being a prison at Jablanica."
6 Could you just clarify for the Court what you meant when you said
7 "and other information." Which other information were you speaking
9 A. In June, in the area of Dubovik, we arrested a number of persons,
10 and after interviewing them, we got information that the KLA group that
11 was active in Dubovik, which is in the Pec municipality, in mid-June
12 1998, three persons were kidnapped, two Serbs and Montenegrins,
13 Novica Vujisic and Vucic Vuckovic, who are related, and a Muslim,
14 Izet Gutic. These persons had been kidnapped by members of the Shalja
15 family who ran the KLA organisation at Dubovik. Their property was
16 destroyed, their vehicle was taken by a KLA member from Dubocak, which is
17 a hamlet of Dubovik. And those persons were taken to the Jablanica
18 prison by a KLA member whose nickname was Sadam [phoen]. According to
19 our information, it also happened in July to Milos Rajkovic, a man who at
20 the time was about 50 years old. He was also taken to the Jablanica
21 prison. And we know nothing about their fate to this date, if I'm not
22 mistaken. There was more such information.
23 MR. EMMERSON: I will -- it may be that the witness is finished,
24 but I've been listening to it, I'm in Your Honours' hands. But it's
25 entirely open to the Chamber to bring a stop to this because this
1 evidence is plainly outside anything which has been notified. It's
2 unsourced, and it's vulnerable to all the same objections as to
3 reliability and cross-reliability, as all of the other issues that have
4 been brought up. I mean, this is really barrel-scraping stuff.
5 MR. GUY-SMITH: I join in that objection.
6 MR. HARVEY: Your Honour, I most certainly join in that
7 objection. Apart from anything else, the witness has been asked about
8 other information. He says discusses with other sources at page 50,
9 line 8, he was -- had been asked by Ms. Kravetz and she correctly came
10 back and tried to get him to explain again what he meant about sources
11 other than from interviews. And what he, I suggest, euphemistically
12 refers to as interviews, sessions in which people are interrogated at
13 great length --
14 JUDGE MOLOTO: You are testifying.
15 MR. HARVEY: Yes, I will stop doing that. But I think the
16 witness's attention should also be drawn to the fact that every time one
17 of those interviews occurred, there appears in the statement that
18 accompanies it or the official note of the interview the expression
19 "source unreliable, information partially verified." And all of these in
20 my submission, all of those so-called interviews, yield nothing except
21 what the interviewer wants out of it and have to be regarded as
22 completely unreliable.
23 MS. KRAVETZ: Your Honour, these are really submissions to be
24 made at a later stage when the time comes for Your Honours to assess the
25 weight of this evidence.
1 JUDGE MOLOTO: Or they could be tendered into evidence through
2 the witnesses.
3 Madam Kravetz was asking a question -- a follow-up question on
4 which arose in cross-examination and which elicited an answer which the
5 witness -- in which the witness said -- I'm looking for those interviews
6 and information, if somebody can tell me --
7 MR. HARVEY: Page 50, line 6.
8 MS. KRAVETZ: Yes.
9 JUDGE MOLOTO: Thank you so much.
10 Right -- said -- that is the question at page 49, line 24:
11 "Sir, you were asked a series of questions about the witness
12 statement of Naser Kalamashi which is referred to in your own witness
13 statement. When your service obtained information through witness
14 statements, was there a process through which your service verified or
15 cross-checked the information contained in those statements; and if yes,
16 could you explain what that process was?"
17 Now, since I came to this Tribunal, when questions are asked I
18 have found that, first of all, questions are asked in the page form,
19 answers are given in ten-page form. Now, that's why I have been
20 insisting, for instance, when I'm asking a question, I say: You can
21 either say yes or no, because I don't want a further explanation.
22 Now, I think if there was any objection to be raised, it must be
23 raised against the form of the question. Unfortunately, when the witness
24 now, in answer to that question, goes for 1, 2, 3, 4 -- 10 lines and
25 comes up with evidence that you hadn't had notice about, whose fault is
1 that? I -- okay. Yes, sir.
2 MR. GUY-SMITH: Well, if we were engaged in a proper form of
3 question and answer, then the fault would lie at the feet of the
4 questioner. If the Chamber --
5 JUDGE MOLOTO: Then the objection must be made at the time when
6 the question is made.
7 MR. GUY-SMITH: But we have been -- and I'm assuming, and perhaps
8 I'm making a mistake with regard to experience in many -- in many
9 courtrooms, but in my experience has been a -- both affirmative and
10 negative with regard to the Tribunal. We're not allowed to object to an
11 answer. If an answer is non-responsive to a question, then, in fact,
12 that answer should not be continued nor should it be made part of the
13 record. But I have been in situations previously -- and I was, as a
14 matter of fact -- I've had an argument specifically with one of the
15 members of this Chamber with regard to that particular issue. So if --
16 so if the question that is posed is either posed sloppily or
17 artfully - and it can be one or the other - and it elicits the kind of
18 rambling responses --
19 JUDGE MOLOTO: It could also just be a plain question: What's
20 your name, and then you get -- given [Overlapping speakers] ... page
22 MR. GUY-SMITH: If the question is: What is your name? And I
23 answer that question by saying: Well, when there was a
24 disenfranchisement of the Kosovar Albanian people in 1990 as a result of
25 legislation that came through, et cetera, et cetera, et cetera,
1 et cetera, then as a questioner, if Mr. Mair, for example, was asking me
2 that question, it would be Mr. Mair's responsibility at that point in
3 time to say: Excuse me, Mr. Guy-Smith, but you're not responding to my
5 MR. HARVEY: Your Honour.
6 JUDGE MOLOTO: Yes, Mr. Harvey.
7 MR. HARVEY: If we were -- and I've spent many years practicing
8 in the United States - the appropriate move there would -- a motion to
9 strike --
10 JUDGE MOLOTO: [Overlapping speakers]
11 MR. HARVEY: Would be a motion to strike as non-responsive.
12 JUDGE MOLOTO: I never did.
13 MR. HARVEY: No, it's not a bad jurisdiction to operate in.
14 JUDGE MOLOTO: I'm not suggesting anything.
15 MR. HARVEY: But the point I'm making is that essentially
16 Your Honours are -- should be invited to completely ignore an answer that
17 is non-responsive and that's what I would invite you to do.
18 JUDGE MOLOTO: That is what we do do when we look at the
19 judgement -- when we write the judgement. But, you know, we can't get
20 the witness -- what I usually do say is I say to counsel: Counsel,
21 control your witness. And I've said it already in this trial, and I've
22 said it already to this counsel before. But, you know, I can only say it
23 so many times.
24 MR. HARVEY: Perhaps we were being thin-skinned. We thought that
25 you were telling us that we should have objected to her question before
1 hearing the answer was non-responsive.
2 JUDGE MOLOTO: Whatever it is.
3 Well, anyway, you may proceed, Madam Kravetz.
4 MS. KRAVETZ: Thank you, Your Honour.
5 Q. Sir, just going back to my question, and I would like you to
6 focus on the question I'm asking. You have already told us that
7 interviews were one of the sources that you used in your work and you
8 have referred to other information. And what I'm trying to clarify is
9 what you meant when you referred to "other information."
10 JUDGE DELVOIE: Mrs. Kravetz, do you ask this in a general way or
11 with respect to something very specific?
12 MS. KRAVETZ: I didn't want to restate the whole question --
13 JUDGE DELVOIE: Yes, but I think after all this, the witness
14 knows that.
15 MS. KRAVETZ: Okay.
16 Q. So, sir, we were talking about how your service cross-checked or
17 verified information that was contained in witness statements that you
18 received. And you said that you did this through interviews with other
19 sources and "other information." What I'm seeking to clarify and get an
20 answer from you is: Which other information did you use to verify or
21 cross-check what was contained in the witness statements that your
22 service received?
23 A. SUP reports that we received, information we received through the
24 public media in Albanian, information we received that originated from
25 the army intelligence service, foreign journalists who were in that area,
1 we used all available sources which could point out to us something
2 happening or some information that was unclear to us or in order to
3 deepen our knowledge.
4 Q. Thank you. I think that clarifies that. And just going back to
5 your answer on page 50, line 10, you referred to "some Serbs,
6 Montenegrins, Roma, and Albanians had been kidnapped and abducted."
7 Can you explain where these persons were kidnapped and abducted
8 in a very concise way, if you can?
9 A. The abductions occurred in the triangle in the operative zone of
10 Dukadjin, the municipalities of Pec, Decani, Djakovica, Klina, the area
11 of these four municipalities. I mentioned abductions in the villages of
12 Dubovik and Raosic [phoen]. There was an abduction of a financial expert
13 near the village of Dujak in the municipality of Djakovica. Radunovic
14 from Pec, he was an economist. We had an abduction of Stosic --
15 MR. EMMERSON: Objection on precisely the same terms.
16 MS. KRAVETZ: Your Honour, I'm just simply seeking to clarify the
17 answer because in the way it currently stands on the transcript it's not
18 completely --
19 JUDGE MOLOTO: The point is -- the point being made,
20 Madam Kravetz, is once you have got your answer, stop your witness. The
21 answer I think ended at:
22 "The abductions occurred in the triangle of the operative zone of
23 Dukadjin, the municipalities of Pec, Decani, Djakovica, Klina, the area
24 of these four municipalities." Full stop. There you must cut him.
25 MR. EMMERSON: I, in fact, would go further to the root of the
1 problem. The root of the problem is that the permissible
2 cross-examination question and answer is what methodology in general did
3 you use to cross-verify? The witness answered that question by referring
4 to a list of sources, including foreign journalists. That's the answer
5 to the question. What Ms. Kravetz is really trying to do is to elicit
6 specific examples. And the clarification, as --
7 JUDGE MOLOTO: I'm sorry, Mr. Emmerson. She had moved beyond
8 that. She just wanted to know -- the next question was: Where were
9 these people kidnapped --
10 MR. EMMERSON: Yes, but --
11 JUDGE MOLOTO: She had dealt with the methodology.
12 MR. EMMERSON: I'm objecting to that question. I'm objecting to
13 her introducing specific examples --
14 JUDGE MOLOTO: Then you should have objected as the question was
15 being asked at that stage. That's what I'm just saying. That's the
16 question you are objecting to. The question was -- sorry:
17 "Can you explain where these persons were kidnapped and abducted
18 in a very concise way, if you can?"
19 Page 58, lines 6 and 7.
20 MR. EMMERSON: Yes. The reality is that all of this testimony
21 which is designed to be elicited to give specific examples, all of it
22 unsourced and unnotified, is beyond the scope of proper re-examination.
23 The only legitimate cross-examination question that triggers this line of
24 re-examination - re-examination must be directed to questions asked in
25 cross-examination - concerns Ms. Kravetz's attempt to repair the damage
1 caused by this witness's acknowledgement that when advancing as reliable
2 a statement of Bekim -- Naser Kalamashi in his witness statement, he had
3 no idea, as he acknowledged, whether it was reliable or not. That was
4 the question in cross and the answer. And any re-examination must be
5 properly directed to that. Now obviously she can't ask him anything
6 about that particular statement because that would impeach his original
7 answer. So what she's entitled to do is ask what the methodology in
8 general was. She's asked that. It's been answered. And all of this
9 specific material trawled from a witness who has no sources available to
10 him or to us or to Your Honours is way beyond legitimate re-examination
11 and should be stopped.
12 JUDGE MOLOTO: Madam Kravetz.
13 MS. KRAVETZ: Your Honour, respectfully, my question falls
14 squarely within the scope of re-examination. I had picked up from a
15 question that was put by Mr. Emmerson to the witness in relation to a
16 statement, and at this point I am simply seeking to clarify the answer he
17 gave and I'm entitled to do that, to clarify the answer, just so it's
18 understandable when Your Honours go back and read the transcript of this
19 witness and his response to my question. It was a simple clarificatory
20 question that I put to the witness, and I'm entitled to do that. I
21 wasn't seeking to elicit specific examples. I was only asking for where
22 these persons were abducted and the witness has answered that.
23 JUDGE MOLOTO: [Microphone not activated]
24 MR. HARVEY: Microphone.
25 JUDGE MOLOTO: Sorry, objection upheld.
1 MS. KRAVETZ: Thank you.
2 Your Honour, at this stage I have no further questions --
3 JUDGE MOLOTO: Thank you so much, Madam Kravetz.
4 [Trial Chamber confers]
5 JUDGE MOLOTO: Mr. Stijovic, thank you so much for coming to
6 testify at the Tribunal. You have now come to the end of your testimony.
7 You are excused. You may stand down, but before you stand down I just
8 want to mention this, that certain arrangements are still pending. So
9 realise that Mr. Guy-Smith has not cross-examined you. You may very well
10 be re-called to come back for cross-examination by Mr. Guy-Smith and
11 Mr. Harvey. Just to let you know so you are not surprised when you are
12 called again.
13 MR. GUY-SMITH: In that regard, could the Chamber kindly admonish
14 him with regard to who he can have contact with.
15 JUDGE MOLOTO: We will do that.
16 MR. GUY-SMITH: Thank you so much.
17 JUDGE MOLOTO: Because of that, you've got to remember that even
18 though you're now being excused, you are still under -- bound by the
19 declaration you made to tell the truth, the whole truth, and nothing else
20 but the truth. But more importantly, because you are still on the
21 witness-stand, you may not discuss this case with anybody, in particular
22 with none of the people in the Prosecution side, but nobody until you are
23 finally excused. Okay.
24 [Trial Chamber confers]
25 JUDGE MOLOTO: We will ...
1 [Trial Chamber confers]
2 JUDGE MOLOTO: So until you are excused, you may not discuss the
3 case with anybody. Okay. Until you are finally excused from further
5 THE WITNESS: [Interpretation] Very well. Thank you.
6 Your Honour, could you please explain to me this: Am I going home now or
7 am I staying here? I mean, it can take a year for me not to be able to
8 speak about my testimony with anybody. I mean, after all, this is a
9 public testimony. I testified publicly.
10 JUDGE MOLOTO: You are going home now, but it will not take a
11 year, it will not take six months, it will not take a month, it will not
12 take two weeks. Okay. Thank you so much. You are now excused.
13 THE WITNESS: [Interpretation] Very well. Thank you very much.
14 [The witness withdrew]
15 JUDGE MOLOTO: Madam Kravetz.
16 MS. KRAVETZ: Thank you, Your Honour. Before we move to the next
17 witness, my colleague, Ms. Goy, would like to make an oral application
18 which concerns an upcoming witness this week.
19 MR. EMMERSON: I'm sorry to interrupt, but as a matter of logic,
20 before we move on to Ms. Goy's application or notification, can I just
21 make absolutely certain that Your Honours have understood in relation to
22 the witness statement, the 65 ter witness statement, of the last
23 witness -- and it may be absolutely clear but it wasn't necessarily as
24 clear on the transcript when Mr. Dixon explained it as I'd like it to be
25 for Your Honours.
1 The 65 ter statement purports to exhibit a large number of
2 documents and to comment on them. Now, because of decisions taken by the
3 Prosecution in this trial based, in large part, on rulings of
4 admissibility by the previous Trial Chamber, a large number of those
5 documents that the witness purports to exhibit and describe are not, in
6 fact, being tendered in these proceedings. So if I can just give
7 Your Honours an example. If we could -- I'm sorry.
8 JUDGE MOLOTO: Let me just be -- you are aware that at the
9 beginning of the testimony of this witness -- and Madam Kravetz did ask
10 to tender into evidence the documents that the parties don't object to.
11 MR. EMMERSON: Yes.
12 JUDGE MOLOTO: And then she proceeded to tender the documents
13 that have not been tendered in the previous case.
14 MR. EMMERSON: Yes.
15 JUDGE MOLOTO: In the previous trial, which is what she did. So
16 I'm not sure when you say "a large number of documents have not been
17 tendered," I'm not quite sure what --
18 MR. EMMERSON: Let me explain because I think it is perhaps
19 confusing. There are three categories of exhibited documents. There are
20 those that were tendered in the previous trial but ruled inadmissible,
21 with one exception, the Prosecution has not sought the re-introduction of
22 those documents in this trial. That one exception has been re-introduced
23 by agreement. Then there are new documents that were never tendered in
24 the previous trial, and those are the ones that have been tendered in
25 oral testimony. So essentially, what has been -- what -- the documents
1 that have been put before Your Honours mirror identically the documents
2 that were ruled admissible by the previous Trial Chamber with the
3 exception of one document which is now admitted by agreement.
4 JUDGE MOLOTO: That is the ones that were not admitted at all in
5 the previous trial.
6 MR. EMMERSON: They are -- no, the ones that were not -- oh, yes,
7 I'm sorry, the completely new documents, those that weren't tendered in
8 the previous trial. Your Honour is quite right. If I can just give
9 Your Honours an illustration because it is quite important to get this
10 right. I don't know whether you have a hard copy of the witness's 92 ter
11 statement at hand, but, if not, somebody will give me the correct
12 reference for calling it up. Here it is. It's P121.
13 JUDGE MOLOTO: Right.
14 MR. EMMERSON: So if we call up P121. It is rather important as
15 Your Honours read through the statement. You'll see why in just a
16 moment. I'm sorry, it's not appearing on my screen. Very well.
17 Can I ask, please, that we turn to -- at the bottom of the page
18 is numbered 1 of 36. Can we move to page 25 of 36, just as an
19 illustration for Your Honours. Now, towards the bottom of that page, I
20 don't know whether Your Honours can see -- ah, yes, just halfway down
21 that paragraph. Annex 45 -- towards the bottom end. Annex 45, if you
22 highlight that until the end. Annex 45 is a -- I'm sorry, we've lost it:
23 "Annex 45 is a Pec DB report dated 1st of April, describing what
24 was found in the Haradinaj family compound when it was searched by MUP
25 forces, including lists of individuals to be 'liquidated because they
1 were supposedly Serbian spies.'"
2 Now, that document is not in evidence. It was ruled
3 inadmissible, and it's not tendered by the Prosecution in these
4 proceedings. So, for example, on the question of lists, the evidence is
5 the evidence of the witness, that there was a list, it had names on, the
6 names on cross-checking with Serbian RDB files were names of individuals
7 who were, in fact, whether through blackmail or bribery, collaborators.
8 Now, if one looks at this passage, it -- the report then summarises what
9 else is in the document, and similarly, one goes on with Annex 46 is a DB
10 Pec official note dated -- of an interview of Rasim Sulejmani, and it
11 goes on the following page and describes it. Now, there are numerous
13 JUDGE MOLOTO: They're not tendered.
14 MR. EMMERSON: No, they're not tendered, but I wouldn't want
15 Your Honours when reading the statement to be under the illusion that
16 there is any evidence from the witness at all -- you see, simply from
17 reading the statement one does not get a distinction between what is and
18 is not tendered. So the approach which we would invite Your Honours to
19 take is that insofar as the documents that are in -- referred to and
20 described in the witness statement are not tendered by the Prosecution,
21 Your Honours can effectively strike through the operative paragraphs in
22 the 92 ter because they're entirely unsourced. That's essentially the
23 position. I just wanted to make sure that was clear.
24 JUDGE MOLOTO: Thank you, Mr. Emmerson.
25 Madam Kravetz, you were saying something?
1 MS. KRAVETZ: Your Honours, we're not seeking to rely on the
2 exhibits that were not tendered, and I think Your Honours when reading
3 through this evidence will be able to assess --
4 JUDGE MOLOTO: Thank you so much for that. I thought you were
5 telling us something before Mr. Emmerson rose.
6 MS. KRAVETZ: Oh, yes, I was, Your Honours. I was just saying
7 that before we move on to the next witness, my colleague, Ms. Goy, would
8 like to make an oral application, and it concerns a protected witness who
9 is scheduled for later on in the week.
10 JUDGE MOLOTO: Madam Goy.
11 JUDGE DELVOIE: Should we go into private session?
12 MS. GOY: Good morning, Your Honours. Yes, I would like to make
13 an application in relation to the protective measures of Witness 78, and
14 we had to notify the Defence yesterday evening about that, and I would
15 like to do that in private session, please.
16 JUDGE MOLOTO: Thank you very much, Madam Goy.
17 May the Chamber please move into private session.
18 [Private session]
11 Pages 629-631 redacted. Private session.
3 [Open session]
4 JUDGE MOLOTO: Mr. Menon.
5 MR. MENON: Your Honours, the Prosecution calls Bislim Zyrapi.
6 JUDGE MOLOTO: While we're waiting for the witness to come in,
7 we've been given -- I hear you calling ...
8 [Trial Chamber confers]
9 JUDGE MOLOTO: My apologies. My apologies.
10 MR. MENON: Your Honour, if you're referring to the bundle, I can
11 clarify that. There's certain documents which we considered would be
12 more efficiently shown to the witness in hard copy, so --
13 JUDGE MOLOTO: Thank you. No, that's fine.
14 [The witness entered court]
15 JUDGE MOLOTO: May the witness please make the declaration.
16 THE WITNESS: [Interpretation] I solemnly declare that I shall
17 speak the truth, the whole truth, and nothing but the truth.
18 WITNESS: BISLIM ZYRAPI
19 [Witness answered through interpreter]
20 JUDGE MOLOTO: Thank you very much. Good afternoon, Mr. Zyrapi.
21 You may now be seated.
22 Mr. Menon.
23 MR. MENON: Thank you, Your Honour.
24 Examination by Mr. Menon:
25 Q. Sir, can you please state your full name for the record.
1 A. My name is Bislim Zyrapi.
2 Q. Would you please state your date of birth.
3 A. 9th of July, 1962 --
4 Q. And your place of birth?
5 A. I was born in Studenqan village, the Suhareke community.
6 Q. And, sir, did you provide the Office of the Prosecutor at this
7 Tribunal with a statement in November 2005 and another statement in
8 April 2007?
9 A. Yes.
10 Q. And, sir, did you testify in the initial Haradinaj trial in
11 April 2007?
12 A. Yes.
13 MR. MENON: And if we could call up, Your Honours,
14 65 ter Exhibit 00117 on e-court.
15 Q. Sir, do you see the document in front of you?
16 A. Yes.
17 Q. Can you tell us whether the information in this document is
18 correct as of today's date?
19 A. Yes.
20 Q. Well, sir, let me direct you to your current occupation. Is that
21 your current occupation as referred in the document?
22 A. At the time, I was a director of the department. I no longer
23 exercise this function. As to the rest of it, the rest is correct.
24 Q. Okay. Very well.
25 MR. MENON: Your Honours, I would seek to tender this document.
1 It was -- it's one of the associated documents, but there was just the
2 correction that needed to be made.
3 JUDGE MOLOTO: Thank you very much. It's admitted into evidence.
4 May it please be given an exhibit number.
5 THE REGISTRAR: Your Honours, that would be Exhibit P158.
6 JUDGE MOLOTO: Thank you.
7 MR. MENON:
8 Q. Now, sir, after arriving in The Hague, have you had a chance to
9 review your prior testimony from the Haradinaj trial?
10 A. Yes.
11 Q. And having reviewed that testimony, are you satisfied that it
12 accurately reflects what you said at the time when you provided the
14 A. Yes.
15 Q. And, sir, if you were asked the same questions today as you were
16 when you testified, would your answers be the same?
17 A. Yes.
18 MR. MENON: Your Honours, I would move to admit 65 ter 04004,
19 which is this witness's testimony from the initial Haradinaj trial.
20 JUDGE MOLOTO: Admitted.
21 May it please be given an exhibit number.
22 THE REGISTRAR: Your Honours, 65 ter 04004 will be Exhibit P159.
23 JUDGE MOLOTO: Thank you.
24 MR. MENON:
25 Q. And, sir, after arriving in The Hague, have you had a chance to
1 review the statements which you gave the Office of the Prosecutor in
2 November 2005 and April 2007?
3 A. Yes.
4 Q. And having reviewed those statements, do they accurately reflect
5 what you said at the time when you were interviewed?
6 A. Yes.
7 Q. And if questions were put to you about the subject matter in
8 those statements, would your answers be the same?
9 A. Yes.
10 MR. MENON: Your Honour, with that, I would move to admit
11 65 ter Exhibit 118 and 121, which are the statements referred to.
12 JUDGE MOLOTO: Statements 118 and 121 are admitted into evidence.
13 May they please be given each an exhibit number.
14 THE REGISTRAR: Your Honours, 65 ter 00118 will be Exhibit P160,
15 and 65 ter 00121 will be Exhibit P161.
16 JUDGE MOLOTO: Thank you.
17 MR. MENON: Your Honours, I would also move for the admission of
18 the associated exhibits that accompany the statements and transcript.
19 We've notified that to the Registry on the 23rd and the Defence on the
20 22nd of August, so all of those exhibits with the exception of 65 ter
21 00117, which is previously admitted obviously at the start of the
22 witness's testimony.
23 JUDGE MOLOTO: And what was the response of the Defence on those
25 MR. MENON: Well, I've only heard from the Haradinaj Defence
1 team, and they've indicated that they don't object. I haven't heard from
2 the other two Defence teams.
3 JUDGE MOLOTO: I see Mr. Guy-Smith is on his feet.
4 Yes, Mr. Guy-Smith.
5 MR. GUY-SMITH: With regard to the associated exhibits that are
6 on the original -- that are written exhibits that are in the original
7 language, Albanian and/or Serbian, we have no objection. With regard to
8 the translations that will be made available to the Court, to the extent
9 they have not been changed or modified from those translations that were
10 previously a part of the record in a similar situation that we were
11 yesterday, once again we have no objection. With regard to those
12 modified or new translations that have been made by the Prosecution, we
13 do have an objection and we believe there are somewhere in the
14 neighbourhood of about ten of those.
15 JUDGE MOLOTO: Do you have any response, Mr. Menon?
16 MR. MENON: Well, Your Honour, to the extent that translations
17 have been revised, it's -- it would have been because -- and I'm not able
18 to specifically refer to anything because Mr. Guy-Smith hasn't
19 specifically referred to any exhibits that he -- that troubled him. But
20 to the extent that there have been revisions, it's because there were
21 either errors or the translation was not as precise as it needed to be.
22 MR. GUY-SMITH: Well --
23 JUDGE MOLOTO: My question to you, Mr. Menon, would be: Who did
24 the revision?
25 MR. MENON: Well, Your Honour, that would depend on the specific
1 document. I'm not in a position actually to address that --
2 JUDGE MOLOTO: What I mean is -- I'm not asking for the person,
3 but which section of the Tribunal did the revision?
4 MR. MENON: Can I just have a moment to consult with my
5 colleague, Your Honour?
6 JUDGE MOLOTO: By all means.
7 [Prosecution counsel confer]
8 MR. MENON: Your Honour, my understanding is that for those
9 exhibits that had translations that were done internally within the
10 Office of the Prosecutor, then the revision process stayed within the
11 Office of the Prosecutor. For those translations that were originally
12 done by CLSS, then any revisions would have been done by CLSS. We're
13 obviously in Your Honour's hands. If Your Honours would prefer that all
14 revisions be done through CLSS, then we can make that arrangement.
15 That's not a problem.
16 JUDGE MOLOTO: That would be the preference of the Chamber, I
17 would imagine.
18 [Trial Chamber confers]
19 MR. GUY-SMITH: Well, there is another problem with regard to the
20 manner in which my opponent is suggesting we proceed, which is there is
21 an exhibit which is part of the record, and to change that translation at
22 this time is inappropriate. That was why I rose yesterday, for the exact
23 same reason with regard to Ms. Kravetz's attempt to engage in the exact
24 same behaviour. And as a matter of fact, with regard to the revised --
25 at least the internal revised translation of one document, that's
1 65 ter 00140, it is -- there are substantial changes with regard to the
2 meaning. So I think that we're in a very simple situation. They had an
3 exhibit, they're relying on the exhibit, the exhibit should go in as it
4 went in before, and to deviate from that position at this point in time
5 is not appropriate.
6 [Trial Chamber confers]
7 JUDGE HALL: Mr. Guy-Smith, please assist me. I understand
8 perfectly the logic of your position, that if the Prosecution is relying
9 on an item that was previously tendered and it has been changed by
10 translation, we're dealing with something else and technically they can't
11 do that because it's something different. But in purely practical terms,
12 if the revised translation for the reasons Mr. Menon has mentioned has
13 been done by CLSS, not the OTP or anybody else, mustn't the presumption
14 of the correctness and probity and everything of CLSS override the logic
15 of your position?
16 MR. GUY-SMITH: The answer to that question is no, which I
17 wouldn't have expected it to be except having dealt in my previous case
18 with a native-born attorney. The number of times that we had serious and
19 substantial arguments or disagreements about the meaning of a word or a
20 phrase with CLSS were legion and we were constantly in the process of
21 trying to iron this out, and I was surprised at the number of times that,
22 quite frankly, I would say that our view - because theoretically I'm
23 advocating - but our view won the day because it, in fact, was an
24 appropriate translation of either the word or the concept. It's
25 unfortunate, but as we all know there is an old statement which is -- and
1 I'm going to paraphrase it at this point, which is that the translation
2 is treason. And by that, there are often difficulties that one has
3 between the original language and it being translated into another
4 language. We've actually, as a matter of fact, seen that earlier today
5 with the use of the word "you." I mean, I wish I -- what I think --
6 JUDGE HALL: I follow you. Thank you, Mr. Guy-Smith.
7 MR. GUY-SMITH: Surely.
8 MR. MENON: Your Honour, may I just correct the record. For the
9 record, Mr. Guy-Smith referred to 65 ter 00140. My understanding is that
10 the translation that was relied upon in the initial trial is still the
11 translation that is in e-court and it remains a draft translation.
12 JUDGE MOLOTO: It looks like --
13 MR. GUY-SMITH: It seems to me, if I might, Your Honour, because
14 it's not all of the documents. There are a discrete number of documents.
15 Perhaps I can get together with my opponent at some point during some
16 break and we can iron out these specific issues, if it comes to that, or
17 we can iron out the issues and see where it goes from that.
18 JUDGE MOLOTO: I understand what you are saying. In my view,
19 there are two separate issues here. There is the point you make,
20 Mr. Guy-Smith, about what - for lack of a better word - I'll call
21 incorrectly translated translation that has gone into evidence in a
22 previous hearing, and that's a separate issue from either corrections
23 being made by CLSS or internally within the OTP. I would imagine that
24 assuming there was no prior trial, what went -- whatever is being
25 translated should be translated by CLSS. If there is a dispute between
1 the parties about -- or between the parties and CLSS about the meaning of
2 a particular word or phrase, they can take it up with CLSS and CLSS can
3 confirm that the party is correct and therefore CLSS acquires in that
4 correction by the party.
5 However, if an incorrectly translated document went into evidence
6 in the prior trial, it seems inappropriate to correct it, unless the
7 parties agree. I don't know whether --
8 MR. GUY-SMITH: I agree with Your Honour.
9 [Trial Chamber confers]
10 JUDGE MOLOTO: I hope I can represent the entire Bench correctly
11 here. What Judge Delvoie is putting across is that it would be
12 preferable if, even if a document has gone in incorrectly in the prior
13 testimony, it would be preferable if a mistake is discovered to know what
14 the correct mistake is. However, there would be a caveat to say we
15 separate that from what is the evidence that was tendered in the previous
16 case so that we understand what was put before the Court in the previous
17 case but we also have an understanding of the correct interpretation.
18 MR. GUY-SMITH: I have no difficulty with that.
19 JUDGE MOLOTO: You have no difficulty with that.
20 MR. GUY-SMITH: No, I have no difficulty with that.
21 JUDGE MOLOTO: Okay.
22 MR. GUY-SMITH: I just need a level of clarity in terms of what
23 you were relying upon.
24 JUDGE MOLOTO: Thank you.
25 MR. GUY-SMITH: Thank you.
1 JUDGE MOLOTO: Okay. And the only reason is to the extent that
2 you -- you change what was admitted, you are literally changing the
3 testimony of this witness.
4 MR. GUY-SMITH: That's correct. That -- and therein lies the
6 JUDGE MOLOTO: Therein lies the rub.
7 Okay. Having settled that, I guess it's my understanding that,
8 Mr. Guy-Smith, you say to the extent you are unhappy with some exhibits,
9 you will get together with your colleague and sort them out?
10 MR. GUY-SMITH: Correct.
11 JUDGE MOLOTO: I'm not quite sure whether what your position is
12 should he be calling those exhibits now before you get an opportunity to
13 sort them out.
14 MR. GUY-SMITH: He should not.
15 JUDGE MOLOTO: He doesn't know which they are.
16 MR. GUY-SMITH: Yeah, we're going to get to them quite rapidly.
17 JUDGE MOLOTO: Okay. Thank you so much. You'll work that out.
18 Where were we? We were at the stage, Mr. Menon, where you -- I
19 need to be reminded, I'm sorry.
20 MR. MENON: Your Honour, I was seeking the admission of the
21 associated exhibits, and perhaps I can simplify the discussion. The
22 position that we're prepared to take is that we are -- we're willing to
23 live with, obviously, the -- whatever translations exist from the
24 original trial, and that to the extent there are mistakes that need to be
25 corrected -- and I'm talking about really simple mistakes, like the date
1 being incorrectly put on the English translation. To the extent that
2 there are such mistakes, we will simply apply to the Chamber to revise --
3 to have a revised translation added to e-court.
4 JUDGE MOLOTO: Okay.
5 MR. MENON: But we're willing to live with the existing record,
6 because I would like to actually have the associated exhibits admitted at
7 this stage, Your Honour.
8 JUDGE MOLOTO: Okay.
9 Do you have any problem with that, Mr. Guy-Smith?
10 MR. GUY-SMITH: Excuse me, if I may, if I could have but one
12 JUDGE MOLOTO: I give you a moment.
13 In the meantime we are waiting for Mr. Guy-Smith.
14 Mr. Emmerson, can Mr. Haradinaj's Defence confirm that, in fact,
15 it has said it doesn't object to the associated --
16 MR. EMMERSON: Yes.
17 JUDGE MOLOTO: Thank you so much.
18 Mr. Harvey -- are you trying to find your microphone?
19 MR. HARVEY: No, I'm trying to find your question, Your Honour.
20 I didn't hear it. I do apologise.
21 JUDGE MOLOTO: I beg your pardon. My question was: Do you have
22 any comment to make on the application by the Prosecution to tender into
23 evidence the associated exhibits that go with the statement of the
25 MR. HARVEY: No, I don't.
1 JUDGE MOLOTO: You don't.
2 MR. HARVEY: Thank you very much, Your Honour.
3 JUDGE MOLOTO: Thank you so much.
4 Do -- is your moment over now, Mr. Guy-Smith?
5 MR. GUY-SMITH: Yes, my moment is over now. I believe that we
6 can live with that solution subject to, once again, the potential that
7 adds to some -- to the discrete number of exhibits that I'm concerned
8 about, we may have to have them withdrawn or changed.
9 JUDGE MOLOTO: Well, he --
10 MR. GUY-SMITH: Fine --
11 JUDGE MOLOTO: -- what Mr. Menon is saying is he will live with
12 those mistakes. He's not going to tender in changed translations.
13 MR. GUY-SMITH: Fine.
14 JUDGE MOLOTO: So it will be ...[Overlapping speakers]
15 MR. GUY-SMITH: Part of the difficulty here is what has been put
16 into e-court and what we have been given as the translated document is
17 not the same document that we had in the original trial.
18 JUDGE MOLOTO: I thought you were going to sort that out with
19 him --
20 MR. GUY-SMITH: I will try to sort that out. So there may come a
21 time when we're going to be changing the documents. By "changing," I
22 mean putting in the originals, the original translations from the first
23 proceeding. Am I clear?
24 JUDGE MOLOTO: You are very clear.
25 MR. GUY-SMITH: Thank you.
1 JUDGE MOLOTO: Thank you so much.
2 Okay. That being the case, then the associated exhibits are
3 admitted into evidence, and may they please be given exhibit numbers
5 MR. MENON: Your Honour, with your leave, I would read out the
6 92 ter summary for this witness now.
7 JUDGE MOLOTO: Say that again?
8 MR. MENON: With your leave, I would read out the 92 ter summary
9 for this witness.
10 JUDGE MOLOTO: Just before you do that, just to place on record
11 the caveat that Mr. Guy-Smith said, that there may be a need to swap
12 translations, depending on what the situation is that arises.
13 Yes, you may come up with the application -- you leave to --
14 MR. MENON: Read out the 92 ter summary for the witness.
15 JUDGE MOLOTO: You may do so, Mr. Menon.
16 MR. MENON: The witness was formerly a professional soldier in
17 the JNA, the ARBiH, and then the KLA. In March 1998, he went to Tirana
18 in Albania and set about training KLA soldiers in Albania and providing
19 advice on weaponry to KLA members.
20 Around the 28th of May, 1998, the witness crossed the
21 Albania-Kosovo border with approximately 80 armed KLA soldiers. Members
22 of the KLA General Staff were in this group. Following his entry into
23 Kosovo, the witness was tasked with training, inspecting, and advising
24 KLA forces, as well as checking on the KLA forces in the western Kosovo
25 KLA operational zones.
1 In July 1998, the witness was appointed as the director of the
2 operational department of the KLA General Staff. Shortly thereafter,
3 around mid-July 1998, the witness travelled to the Dukagjin zone and
4 toured the zone over a three-day period. The witness describes this tour
5 in his evidence. The witness's first visit during this tour was in the
6 village of Jabllanice in Djakovica municipality, where he and other
7 members of the KLA General Staff met Ramush Haradinaj. The witness also
8 visited units in the village of Jabllanice. During his tour of the
9 Dukagjin area, the witness also visited the village of Gllogjan where
10 Ramush Haradinaj was based and he visited certain neighbouring villages
11 around Gllogjan with Ramush Haradinaj.
12 In late August or early September 1998, the witness and a
13 delegation from the KLA General Staff visited the Dukagjin area again and
14 intervened in a dispute concerning Ramush Haradinaj's leadership over the
15 zone. The KLA General Staff sided with Ramush Haradinaj in this dispute.
16 After being appointed as Chief of Staff of the KLA General Staff
17 in November 1998, the witness personally received reports from
18 Ramush Haradinaj. Having received such reports, the witness had the
19 opportunity to see Haradinaj's signature. The witness was shown a number
20 of Prosecution exhibits and has provided commentary on those documents,
21 including the signature of Ramush Haradinaj which appears on many of
22 those documents.
23 That's the end of my summary, Your Honour.
24 JUDGE MOLOTO: Thank you so much, Mr. Menon.
25 Any cross-examination, Mr. Emmerson?
1 MR. MENON: That was the end of my summary, but I do have
3 JUDGE MOLOTO: I'm sorry. I'm running ahead of myself, sorry.
4 MR. MENON: Your Honour, if we could call up document 03011 on
5 e-court. And the witness should be shown the Albanian version, and then
6 the translation and the Albanian should be shown to the rest of the
8 Q. Well sir, do you see the document in front of you?
9 A. Yes.
10 Q. Now, midway down the document - and I think in the Albanian
11 version it's the start of the third paragraph, and in the English version
12 it appears as the start of the second paragraph - there's a sentence
13 which reads:
14 "Voksh is grateful to the KLA special unit led by the Togeri
15 because were it not for this fighter and his hinds, the village of Voksh
16 would today be in the hands of the Serboslav chauvinist enemy ..."
17 Do you see that sentence, sir?
18 A. Yes.
19 Q. Do you know who the reference to Togeri is? Who is Togeri?
20 A. Yes. This report speaks about Togeri, who was the commander of
21 the rapid intervention unit in the Dukagjini zone.
22 Q. And do you know his full real name?
23 A. Yes, Idriz Balaj.
24 Q. And can you tell us, sir, based upon your experiences in the
25 Dukagjin zone why -- why this soldier would be writing to
1 Ramush Haradinaj about Togeri?
2 MR. GUY-SMITH: Objection, calls for speculation.
3 JUDGE MOLOTO: Mr. Menon.
4 MR. MENON: Well, Your Honour, I've -- I've indicated to the
5 witness that based upon his experience -- to answer the question based
6 upon his experience in the Dukagjin zone. And I would note, actually,
7 that the witness -- I mean, in his previous evidence at the time of this
8 particular document he held a senior position within the KLA; that's well
9 established on the record. So there is a sufficient basis for him to
10 answer the question.
11 MR. GUY-SMITH: Mr. Zyrapi, first of all, has not been qualified
12 as a psychologist nor engaged in the ability to render any expert opinion
13 with regard to the thinking of another person. And there's not a causal
14 connection between the offer of proof made by Mr. Menon and the question
15 asked. It still calls for speculation on its part.
16 JUDGE MOLOTO: I do think your question is speculative,
17 Mr. Menon.
18 MR. MENON: Let me rephrase it.
19 Q. Sir, do you know who Togeri reported to, sir?
20 MR. GUY-SMITH: Excuse me, that assumes -- it's both leading and
21 it assumes a fact not the in evidence, that Togeri reported to anyone.
22 MR. MENON: Well, Your Honour --
23 MR. EMMERSON: Sorry, before you respond, I would also join that
24 objection. This witness has already testified that he has no idea who
25 appointed the Black Eagles, what their area of operation was, how much
1 independence or autonomy they had. That was his testimony in the
2 previous trial at T 3356, so he's not in a position to answer the
4 JUDGE MOLOTO: Is that in the testimony that has just been
5 tendered --
6 MR. EMMERSON: No, I'm sorry, that was his testimony in the
7 previous trial --
8 JUDGE MOLOTO: That has just been tendered into evidence?
9 MR. EMMERSON: Yes, Your Honour.
10 MR. MENON: If I may respond. The witness indicated that the
11 rapid intervention unit in Dukagjin and in the others were under the
12 command of the zone commander and that's also from his initial trial. So
13 there is a basis for me to put the question to the witness. Again, it
14 was -- well -- I mean, the difficulty here is that the foundation exists
15 and it exists in his initial testimony. And what Defence counsel
16 essentially seek for me to do is to go through the entire testimony with
17 this witness because that's what would be required in order to --
18 JUDGE MOLOTO: Well, maybe for the sake of this Chamber, which
19 was not in the previous trial, if you can go to that part of the previous
20 testimony that has now been tendered which forms the basis for your
21 question, start there. You don't have to go through the entire evidence,
22 but start where you find the basis and develop from there to get to your
23 question that you want to ask.
24 MR. MENON: Very well, Your Honours.
25 Q. Sir, did you have -- during your visit to the Dukagjin zone, can
1 you tell us -- can you tell us which villages you visited, sir?
2 A. Yes. On the first day, when I arrived, I first visited
3 Jabllanice; on the second day, I visited Gllogjan and some surrounding
4 villages, Irzniq, Prilep, Shaptej. These were the villages I toured on
5 the second day. On the third day, I toured the rest of the territory,
6 Reke e Keqe territory.
7 Q. Sir, when you visited the village of Irzniq, can you tell us
8 whether anyone accompanied you on that visit?
9 A. Yes. Together with me was the commander of the operational zone,
10 Mr. Ramush Haradinaj.
11 Q. And, sir, can you tell us whether you met any KLA members in the
12 village Irzniq?
13 A. Yes. When I visited Irzniq together with the zone commander, we
14 visited the rapid intervention unit where Toger was. I met also
15 Shemsedin Ceku, the commander of the other unit.
16 Q. And, sir, were you -- let me clarify this: When you visited the
17 rapid intervention unit, sir, in Irzniq, can you be precise who you were
19 A. In the rapid intervention unit I was with the zone commander,
20 Ramush Haradinaj, where the rapid intervention unit was located, in
22 Q. And was this the first time that you had met with a commander of
23 a rapid intervention unit within the KLA?
24 A. Yes, at that time, yes.
25 Q. Very well. And, sir, can you tell us whether you learned at that
1 time who the rapid intervention unit based in -- the -- let me rephrase
2 that, Your Honour.
3 Can you tell us at that time whether you learned who Idriz Balaj
4 reported to as the commander of the rapid intervention unit in Irzniq?
5 A. At that time, the rapid intervention unit reported to the zone
6 commander, Mr. Ramush Haradinaj.
7 Q. And how do you know that, sir?
8 A. Because of the fact that I was together with the zone commander
9 when I visited the area and the fact that the unit reported to him.
10 Q. Thank you very much, sir.
11 MR. MENON: Your Honour, I would seek to have 65 ter 03011
12 admitted into evidence.
13 JUDGE MOLOTO: It's admitted.
14 May it please be given an exhibit number.
15 THE REGISTRAR: Your Honours, 65 ter 03011 will be Exhibit P162.
16 JUDGE MOLOTO: Thank you so much.
17 MR. MENON: And can we call up 65 ter 01265. And again, the
18 Albanian should be shown to the witness, and the English and the Albanian
19 version should be shown in the rest of the courtroom.
20 Q. Sir, there's a reference in this document to Tropoja. Can you
21 tell us where that is?
22 A. Tropoja is located in the territory of the Republic of Albania.
23 Q. And then there's a reference in the document to a
24 Commander Ramush. Can you tell us who that may be.
25 A. This request, this document, refers to
1 Commander Mr. Ramush Haradinaj.
2 Q. And, sir, can you tell us who -- can you tell us whether you know
3 how -- how weapons were transferred to KLA soldiers from the Dukagjin
4 zone through this facility in Tropoja?
5 A. Most of the weapons were shipped through mules or horses.
6 Q. But can you tell us, if you know, sir, who was responsible for
7 providing weapons to soldiers who came from the Dukagjin zone to Albania.
8 Who within Albania would be responsible for transferring equipment to
9 those soldiers?
10 A. At the time the person -- the persons responsible for them were
11 the members of the logistical department who were situated in the
12 northern part of Albania.
13 Q. And can you tell us who those members of the logistics department
15 A. At that time that I knew them, they were Xhavit Haliti,
16 Raif Gashi, Xhemal Fetahu, Ilir Konushevci, with whom I had most contacts
17 and co-operated and that I know that they belonged to the logistics
19 Q. And in what context, sir, did you have contacts and co-operate
20 with these men?
21 A. This was at the time I was in Albania, during which time I
22 co-operated with them. I gave them advice on the technical aspect of
24 Q. And, sir, do you know -- can you tell us in which period these
25 men, the four men that you referred to, in which period they assisted in
1 supplying the Dukagjin zone with weapons?
2 A. During all the time that I was in contact with them, and then,
3 after that, up to the end.
4 Q. And can you be a little more specific, sir, and refer to months
5 and years?
6 A. I can't be specific about the months, but from April 1998 or May
7 1998, June, July, and then after that, also in September. Some of them
8 continued to do this job, to work in the logistics department and to
9 supply weapons.
10 Q. And can you tell us whom these men would have had contacts with
11 within the leadership of the Dukagjin zone?
12 A. The men I mentioned, Xhemal, Faik Gashi, Ilir Konushevci, they
13 had contacts, regular contacts, regarding arms supply.
14 Q. But can you tell us whom they would contact in the Dukagjin zone
15 in order to arrange the transport of these weapons?
16 A. I had no precise information at the time about every single
17 aspect of it.
18 Q. Okay. Very well, sir. I won't pursue that.
19 MR. MENON: Your Honour, I would ask for this document to be
20 admitted into evidence.
21 JUDGE MOLOTO: It's admitted. May it please be given an exhibit
23 THE REGISTRAR: Your Honours, 65 ter 01265 will be Exhibit P163.
24 JUDGE MOLOTO: Thank you so much.
25 MR. MENON: And, Your Honour, with your leave, the next -- I
1 intend to show the witness hard copies of the next seven documents
2 because I think it would be a little more efficient. I believe
3 Your Honours, Defence counsel, the Registry, booths, and the court
4 reporter have bundles. And we actually have the versions of these
5 documents that are stored in the evidence unit that we would like to show
6 to the witness himself. And if perhaps the Defence would like to inspect
7 the documents before it's shown to the witness.
8 MR. GUY-SMITH: Excuse me, Your Honour, with regard to the last
9 document that has been admitted, I have just been informed by Mr. Zyberi,
10 and I'm thankful that he's here because he does speak Albanian, that
11 there are words that are in the English translation that do not appear in
12 the Albanian original. So perhaps this document needs to be sent back to
13 CLSS for purposes of clarification.
14 JUDGE MOLOTO: [Microphone not activated]
15 Could we once again, please, have a look at P163.
16 Can you point out the words, Mr. Guy-Smith.
17 MR. GUY-SMITH: The words are "for ages now," which is the
18 second --
19 JUDGE MOLOTO: I can see that.
20 MR. GUY-SMITH: Okay. Those three words, "for ages now" --
21 JUDGE MOLOTO: Are not in the --
22 MR. GUY-SMITH: Are not in the Albanian original, I am told.
23 MR. MENON: Your Honour, for the record, this is -- the
24 translation was the one that was relied upon that was listed for the
25 original Haradinaj trial. So we haven't altered this translation.
1 JUDGE MOLOTO: It was tendered in the original Haradinaj trial.
2 Well, then --
3 MR. GUY-SMITH: Well, this is an example --
4 JUDGE MOLOTO: Yeah.
5 MR. GUY-SMITH: This is an example of one of those places where I
6 think Judge Delvoie's direction becomes important.
7 JUDGE MOLOTO: But then, of course, from what we discussed a few
8 moments ago with you --
9 MR. GUY-SMITH: Absolutely.
10 JUDGE MOLOTO: -- we can't change it.
11 MR. GUY-SMITH: Can't change it. So we do need to make a
12 determination about whether or not the translation, as it stands, is
13 accurate or not for purposes of you, as fact-finders, to give it whatever
14 weight and use whatever way you wish to.
15 JUDGE MOLOTO: The record now shows that you have told the
16 Chamber that the words "for ages now" are not in the original. So that
17 flags it for us. Is that okay?
18 MR. GUY-SMITH: That's perfect.
19 JUDGE MOLOTO: Okay.
20 Sorry about that, Mr. Menon. You can move on.
21 MR. MENON: I was referring to Exhibits 1266, 1267, 1268, 1269,
22 3007, 3009 --
23 JUDGE MOLOTO: And 3013.
24 MR. MENON: -- and 3013. So Your Honours should have copies of
25 that in hard copy.
1 JUDGE MOLOTO: We do. Thank you.
2 MR. MENON: I trust that the witness has hard copies as well.
3 Again, for the record, these are the versions of the exhibit that are
4 stored in the evidence unit.
5 Q. Sir, I would just ask you to carefully go through each document
6 and to look at the bottom right-hand corner of each document to see if
7 you recognise whose signature it is. And once you've gone through them,
8 if you can tell us whether you recognise the signature.
9 A. Yes.
10 Q. Can you go through each document, sir, first.
11 Sir, have you had a chance to go through each document?
12 A. Yes, yes.
13 Q. And do you recognise the signatures on each document? And I'm
14 talking about the signature on the bottom right-hand corner.
15 A. Yes.
16 Q. And can you tell us whose signature that is?
17 A. The signature is that of Ramush Haradinaj.
18 Q. And can you tell us what type of documents those are?
19 A. These are documents, personal documents -- a data on personal --
20 personal data on members that joined the KLA.
21 Q. Thank you very much.
22 MR. MENON: Your Honour, I would seek to have 65 ter exhibits
23 1266, 1267, 1268, 1269, 3007, 3009, and 3013 admitted into evidence.
24 JUDGE MOLOTO: [Microphone not activated]
25 THE INTERPRETER: Microphone for --
1 JUDGE MOLOTO: My apologies. I will start all over again.
2 Those documents that were mentioned by counsel from 1266 up to
3 3013 are admitted into evidence. May they please be given an exhibit
4 number, Madam Registrar, at your leisure out of court, or do you have --
5 THE REGISTRAR: Your Honours.
6 JUDGE MOLOTO: You already have assigned. Okay. Go ahead.
7 THE REGISTRAR: Your Honours, 65 ter 1266 will be Exhibit P164;
8 65 ter 1267 will be Exhibit P165; 65 ter 1268 will be Exhibit P166;
9 65 ter 1269 will be Exhibit P167; 65 ter 3007 will be Exhibit P168;
10 65 ter 3009 will be Exhibit P169; and 65 ter 3013 will be Exhibit P170.
11 Thank you, Your Honours.
12 JUDGE MOLOTO: [Microphone not activated]
13 MR. MENON: And, Your Honour, if we could call up 65 ter 03048,
14 and, again, the Albanian for the witness and the Albanian and the English
15 for the rest of the courtroom.
16 Q. Sir, do you the document in front of you?
17 A. Yes.
18 Q. And can I direct you again to the signature at the bottom of the
19 document, in the bottom right-hand corner of the document.
20 A. Yes.
21 Q. Can you tell us whose signature that is? If you know, sir.
22 A. Yes. The signature is that of Ramush Haradinaj.
23 Q. Thank you, sir.
24 MR. MENON: Your Honour, I would ask for this document to be
25 admitted into evidence.
1 JUDGE MOLOTO: The document is admitted into evidence. May it
2 please be given an exhibit number.
3 THE REGISTRAR: Your Honours, 65 ter 03048 will be Exhibit P171.
4 JUDGE MOLOTO: Thank you so much, Madam Registrar.
5 MR. MENON:
6 Q. And before we leave this document, sir, can you tell us in the
7 summer of 1998 when you visited -- in which periods you visited the
8 Dukagjin zone, can you tell us?
9 A. In the summer of 1998, first, I went there in the middle of July;
10 and for the second time, it was end of August or beginning of September.
11 It was at that time.
12 Q. And you see in the document in front of you there's a reference
13 to the author of the document thanking the village of Jabllanice for
14 their constant readiness to help the Kosovo Liberation Army. Sir, do you
15 know, based upon your experiences in the Dukagjin zone in the summer of
16 1998, what the author of the document is referring to?
17 MR. EMMERSON: I mean, it's another speculative question on which
18 is entirely of the same character as the one as Your Honour has already
19 ruled shouldn't be asked.
20 JUDGE MOLOTO: Mr. Menon.
21 MR. MENON: Your Honour, I'm entirely in your hands. Obviously
22 I've linked it to the witness's visits to the Dukagjin zone. I presume
23 that if the witness is unable to answer the question, then he can tell us
24 that himself.
25 MR. GUY-SMITH: I'm sorry, I raise for another reason which is a
1 document that's dated the 25th of October, which is a considerable period
2 of time after the summer months that have been discussed here, may or may
3 not be a linkage. I don't think that Mr. Menon has linked the document
4 at all. He's made an assumption, he's made an internal assumption as to
5 what's going on, but the evidence has not been given to this Chamber
6 which makes that assumption necessarily one upon which we can get an
8 MR. MENON: Your Honour, I believe the witness's evidence is that
9 he visited in the middle of the July and then it was the end of August or
10 the beginning of September. So it's not such a -- there isn't such a
11 lengthy period between the date of this document and the witness's last
12 visit to the Dukagjin zone.
13 JUDGE MOLOTO: That I accept. But nonetheless, it still remains
14 a bit speculative the way it's phrased, that question. It's not for the
15 Bench to tell you how to ask questions, but it is -- the phraseology of
16 the question to which Mr. Emmerson objected was speculative.
17 MR. MENON: Your Honour, I'll move on then.
18 JUDGE MOLOTO: You don't have to move on. You can rephrase.
19 MR. MENON: Okay, well, I'll put -- if I can just consult with my
21 JUDGE MOLOTO: By all means.
22 [Prosecution counsel confer]
23 MR. MENON:
24 Q. Sir, when you visited the Dukagjin zone in the months you've
25 referred to, July and either the end of August or the beginning of
1 September, were you aware of any assistance that the village of
2 Jabllanice provided to Ramush Haradinaj?
3 A. It was in general, not only Jabllanice. Many other villages of
4 Kosova, not only Dukagjin zone, offered to help with food or provide
5 their houses at the disposal of the KLA. So it was, in general, an
6 assistance provided to the KLA units.
7 Q. And can you tell us -- can you be a little more specific as to
8 the assistance that was provided?
9 A. The assistance consisted in foodstuffs or in providing their
10 homes to the KLA to accommodate itself there.
11 Q. Thank you very much.
12 MR. MENON: Your Honour, if we could move on to 65 ter
13 Exhibit 03002, and I'd ask that page 138 be brought up in the English
14 version and page 132 be brought up in the Albanian version. And only the
15 Albanian for the witness.
16 MR. EMMERSON: Objection, Your Honour.
17 JUDGE MOLOTO: Yes, Mr. Emmerson.
18 MR. EMMERSON: An objection which goes to conduct as well as
19 substance. The Prosecution are well aware this is an excerpt from the
20 book that objection has been taken to in our opening brief and in the
21 course of Mr. Rogers's opening. Now, you have ordered that any
22 supplemental evidence that this witness is to give should be the subject
23 of notice. We received notice from the Prosecution in the form of a
24 supplemental information sheet relating to a number of documents. This
25 is not one of them.
1 JUDGE MOLOTO: Mr. Menon.
2 MR. MENON: Your Honour, with respect, and I'm actually looking
3 for the reference now, but this witness commented on -- on the excerpt
4 which I plan to show him in his November 2005 statement. So the Defence
5 are on notice and it's -- and the document itself is listed on the
6 notification we provided to the witness [sic] as documents to be shown to
7 the witness. So the Defence have notice of the material. There's no
8 prejudice here.
9 MR. EMMERSON: Your Honours ordered that his previous testimony
10 and statements would be admitted to the record as they have been, and to
11 the extent that he has answered questions in relation to this extract,
12 that is already in evidence. Your Honours further ordered that any
13 additional evidence that was sought to be elicited viva voce needed to be
14 the subject of direct notice from the Prosecution. We received direct
15 notice from the Prosecution on the 22nd of August, and for obvious
16 reasons, given that we object to the admissibility of this document, the
17 first thing we looked for was to see whether they were seeking to tender
18 it, and they weren't.
19 MR. MENON: If I can quote from Your Honours' decision, what it
20 says is that:
21 "The Chamber accepts that the Prosecution's submissions that this
22 additional examination-in-chief is based on written statements and
23 transcripts which have been disclosed to the accused."
24 And the November 2005 statement has been in the Defence's
25 possession for a very long time. So that's -- it's entirely fair game.
1 And indeed it's -- the portions of that statement which -- in which the
2 witness commented on this particular extract have been admitted into
4 JUDGE MOLOTO: [Microphone not activated]
5 Thank you.
6 I saw you -- were you rising again, Mr. Emmerson?
7 MR. EMMERSON: No, Your Honour.
8 JUDGE MOLOTO: Now -- and you're saying, Mr. Menon, that this
9 page that you have put on the screen is mentioned in the written
10 statements or in the transcripts that are mentioned in that quotation?
11 MR. MENON: [Microphone not activated]
12 THE INTERPRETER: Microphone for counsel, please.
13 MR. MENON: And I need to find the reference, but the extract
14 which is being shown to the witness is actually commented upon in
15 paragraph -- in paragraph 46 of the statement which the Chamber admitted.
16 It was numbered 65 ter 00118. I don't have the exhibit number which was
17 subsequently assigned. So I can't see how possibly the Defence could
18 claim that they don't have notice or that they're prejudiced by this.
19 This evidence is on the record, and what I'm simply trying to do is have
20 the witness adopt what he previously said so that the extract can go into
22 [Trial Chamber and Legal Officer confer]
23 MR. EMMERSON: Your Honour, the position is this, and I would
24 imagine Mr. Menon must be familiar with this: The portion of this
25 witness's statement that deals with this document was not admitted into
1 evidence by the original Trial Chamber because this document was part of
2 the book that the Trial Chamber excluded. And so for the same reason as
3 in relation to the previous witness, and the relevant passage is
4 paragraph 46 of the witness statement of this witness, the 92 ter
5 statement, the outcome was effectively exactly the same as those passages
6 I took you to at the end of the last witness's evidence, where the
7 Trial Chamber regarded paragraph 46 as unsourced and therefore irrelevant
8 because it had excluded the content document.
9 MR. MENON: Your Honour, if I could just add that -- I think
10 Your Honours have made it clear on several occasions that we are not
11 living in the shadow of the last trial.
12 MR. EMMERSON: No, I'm not suggesting we were, but Mr. Menon is
13 seeking to suggest that notice has been given and the matter is properly
14 put before this Trial Chamber by reason of the admission of the 92 ter.
15 It is no more before this Trial Chamber than those, if you like, empty
16 vacuum vessel passages in the statement of the previous witness, where it
17 purported to exhibit something which was not then exhibited. What
18 Mr. Menon is, in fact, doing is inviting this Trial Chamber to admit this
19 document for the first time, which is, in fact, in substance what he is
20 doing that is objected to, and no notice has been given in relation to
21 it. They know it's objected to. The issue hasn't been argued.
22 Your Honours prevented Mr. Rogers, quite rightly, from opening it. There
23 is no question of this passage having been admitting it. The
24 Trial Chamber excluded it. It, therefore, is not part of the 92 ter.
25 The relevant paragraph is vacuous and empty of content and unsourced.
1 And what Mr. Menon is trying to do is to circumvent the requirement to
2 give notice and have a ruling on the admissibility of this book. In
3 order to get the book admitted, as I indicated to Your Honour at the
4 outset and as is indicated in our opening brief, it would be necessary
5 for the Prosecution to be in a position to prove the provenance of the
6 book, the authorship, the methodology and its reliability. They haven't
7 done that. They haven't sought to do it. And seeking, so to speak,
8 through this witness -- it has nothing to do with the production of this
9 book, and there is nothing about the way in which it was produced to
10 append a single page from it which is not, in fact, in evidence. So to
11 the extent that the 92 ter statement is, the document is not and neither
12 is the relevant passage. It's a simple technique to subvert the basic
13 procedure that has been agreed.
14 MR. MENON: Your Honour, if I can just add, Mr. Emmerson brought
15 up the issue of notice, and, as I mentioned previously, there is no issue
16 of notice. If the extract was in -- the material from the statement is
17 obviously in the statement. It's been admitted, so there's no issue as
18 to what the witness previously said. The document itself, the book, is
19 among the exhibits that we notified the Defence that we intended to show
20 to the witness. And as far as what the last Trial Chamber decided as to
21 the admissibility of this exhibit, it's simply not relevant as
22 Your Honours have indicated. It may be -- there may be some persuasive
23 authority, but it's not binding on this particular Court. And what I
24 intend to do is to show the witness an extract where his name is
25 referenced, he's referred to in the document, and simply to have him read
1 the document and ask whether it's accurate. Obviously if he's referred
2 to in the document then he should be in a position to confirm its
3 accuracy or not.
4 MR. EMMERSON: I'm sorry.
5 JUDGE MOLOTO: The problem we find ourselves in is that if -- if
6 Mr. Emmerson is right, this Chamber has given an order prohibiting the
7 Prosecution from tendering the book which includes this page, pending
8 further issues to be clarified.
9 MR. MENON: Your Honour, I don't recall that such an order was
11 JUDGE MOLOTO: That's why I say if he's right --
12 MR. MENON: First of all --
13 JUDGE MOLOTO: I don't recall myself, and I'm rely entirely on
14 counsel to remind us.
15 MR. MENON: Secondly, I'm not seeking to tender seeking the whole
16 book. What I would be tendering is the extract on which the witness
17 comments, not the whole book.
18 JUDGE MOLOTO: I understand that, except that the page is part of
19 a document that is being objected against.
20 MR. MENON: But I don't see the problem. If the witness is
21 capable of commenting on the book, which he should be, given the fact
22 that he's referred to in the context of a meeting -- and I'm beginning to
23 testify, so I'm going to stop. But surely he should be able to comment
24 on that. He should be able to tell us whether it's accurate or not and
25 based upon that --
1 MR. GUY-SMITH: Once again, he is beginning to testify --
2 MR. MENON: It's a little difficult given the fact that --
3 JUDGE MOLOTO: He hasn't told us what's in the book. He hasn't
4 told us the contents of the so he hasn't begun to testify. He is just
5 saying he could tell us whether it's accurate or not accurate, whatever
6 is being said about him in the book. He hasn't begun to testify.
7 JUDGE DELVOIE: Now just for my clarification, this extract of
8 the book, after having put it to the witness, your intention is to tender
10 MR. MENON: Exactly, Your Honour.
11 JUDGE DELVOIE: Okay. So it is not on the 92 ter document list?
12 MR. MENON: It was not included -- perhaps it could have been
13 included as among the associated exhibits but it wasn't. So that's why
14 it was included among the list of exhibits that we intended to show to
15 the witness.
16 JUDGE DELVOIE: And that has been notified to the Defence --
17 JUDGE MOLOTO: But Mr. Emmerson says he doesn't have notice of
19 JUDGE DELVOIE: Yeah, that's my question.
20 MR. MENON: I don't think that Mr. Emmerson is suggesting that he
21 didn't receive the list because they very well did receive the list. And
22 we can produce the e-mail, if necessary, Your Honour.
23 MR. EMMERSON: Would you like me to explain?
24 JUDGE MOLOTO: No, no, you did explain. I did understand what
25 you said. You said you haven't gotten notice of this page.
1 MR. EMMERSON: The position is, putting it briefly, the
2 Prosecution indicated in advance of the trial that there are certain
3 documents they might seek to rely upon. This particular passage was
4 never admitted by the Trial Chamber in the previous trial, and,
5 therefore, insofar as they thought it was appended to the 92 ter, it is
6 not. And the relevant passage of the 92 ter is empty of content. Now,
7 an objection was notified to the Prosecution in advance of this trial and
8 again in our opening brief that the whole of the document is objected to
9 because of an absence of proof as to its provenance. At the beginning of
10 this trial, when Mr. Rogers sought to open it, I objected, and I'll give
11 Your Honours the page, it's page 225, line 20, and Your Honour,
12 Judge Moloto, ruled as follows:
13 "Let me just make a general comment. I find the opening to verge
14 on testifying and introducing exhibits which are not marked as exhibits
15 yet but which are documents that make an impression in the mind of the
16 Chamber. And to the extent that at this point there is now a dispute
17 about the authenticity and the provenance, the relevance of the book that
18 you are about to refer to, the Chamber feels constrained to apply the
19 rules of admissibility before it allows you to continue talking about
20 that. You've got to authenticate it. You've got to bring in a witness
21 to say he's the author of the book, all the requirements of
23 That hasn't been done. This witness can't authenticate it. It's
24 not currently in evidence. It's improper.
25 MR. MENON: Your Honour, if I may correct Mr. Emmerson's recital
1 of the law, I don't think authorship -- as my understanding of the law at
2 this Tribunal, and I don't have the reference in front of me but I can
3 obtain -- is that there is a Celebici Appeals Chamber decision which says
4 that authorship is not a prerequisite to admission.
5 JUDGE MOLOTO: He was merely quoting what I said. He was not
6 saying he was postulating what the law says in this Tribunal and if --
7 and I'm quite prepared to accept that I may not know the law and I should
8 be guided by the parties. Be that as it may, that order then does stand,
9 and it's got to be rescinded before we can [Overlapping speakers]...
10 contrary to it.
11 MR. MENON: But, Your Honour, our understanding is that there is
12 no order prohibiting the Prosecution from presenting a document to a
13 witness, otherwise it becomes very difficult to tender these documents
14 into evidence.
15 JUDGE MOLOTO: No, it's not these documents. It's part of a
16 document that has been objected to and that a Chamber has made an order
17 about. If anything is being said about this witness which you want to
18 check with him whether it's correct or not, you can put it to him what is
19 said to him -- what is said about him and without necessarily using a
20 document --
21 MR. MENON: But --
22 JUDGE MOLOTO: -- you say is just one -- that part only.
23 MR. MENON: Your Honour, our understanding is that there is no
24 such order. The Chamber has not issued an order prohibiting us from
25 showing the document to witnesses who may be able to comment on the
1 document. That's my understanding of the outcome during -- of the
3 [Trial Chamber confers]
4 MR. MENON: Your Honour, if I can -- I have -- I have a citation
5 from the -- what I believe is the opening that may be helpful. And this
6 is Your Honour speaking -- speaking to Mr. Rogers saying:
7 "I remind you the last" -- and this is in relation to the book.
8 "I remind you the last comment I wanted to make. I think it is
9 important, therefore, where there is a dispute --"
10 THE COURT REPORTER: Please slow down.
11 MR. MENON: Sorry.
12 "Where there is a dispute between the parties about the
13 admissibility of a document, that it be admitted in the normal course. I
14 do not agree with you that the Chamber can read the document to determine
15 its admissibility. Admissibility is determined before the document --"
16 THE INTERPRETER: Please slow down when reading documents. We're
17 not machines. Thank you.
18 MR. MENON: I apologise to the court reporters and the
20 "Admissibility is determined before the document is tendered. So
21 obviously the normal rules apply. There is no order here, Your Honour --
22 MR. GUY-SMITH: Excuse me --
23 MR. MENON: Can I finish. We can -- this is a document that's on
24 our exhibit list that was notified to the Defence well in advance of this
25 witness's testimony. We can put the document to the witness and ask him
1 to comment upon it.
2 JUDGE MOLOTO: That is the dispute because they say that this
3 document is not given to them, it's not --
4 MR. MENON: It was -- Your Honour, if necessary, I'll need a
5 moment but I can produce the notification. I can produce the e-mail.
6 There's no issue as to the Defence not having been notified that we
7 intended to use this particular exhibit with this particular witness.
8 That cannot be an issue because I'm absolutely certain that on the 20th
9 of August, that that was the last time we sent out a notification that
10 this document was included on that list --
11 THE INTERPRETER: Interpreters would be grateful if there could
12 be a break between interventions. Thank you.
13 JUDGE MOLOTO: Thank you very much, Madam Interpreter.
14 Now, if I understood Mr. Emmerson well, he says the Prosecution
15 has not given notice of this page. Now, you say there can never be a
16 dispute about that because we've got an e-mail. Obviously you're privy
17 to that, we're not. He is privy to what he is saying. All I can say is
18 there is a dispute, and, therefore, you're going to have to produce proof
19 that you've served it on them, and then at least we can go past the
20 problem of whether or not they had notice of it --
21 MR. EMMERSON: I'm sorry, Your Honour, just to make sure we're
22 not talking at cross-purposes, I thought I made it clear. The
23 Prosecution notified us that they wished to raise this document with this
24 witness. The position as far as the 92 ter statement is concerned is
25 that it was excluded by the Trial Chamber and therefore the relevant
1 passage of the 92 ter statement is currently without content. For them
2 to be able to raise this document with this witness, they need to prove
3 its provenance. This witness cannot prove its provenance --
4 JUDGE MOLOTO: Now, wait a minute, Mr. -- wait a minute. I think
5 you are talking about two different things here. You're saying the
6 position, as far as the 92 ter statement is concerned, is that it was
7 excluded by the Trial Chamber, and, therefore, the relevant pages of the
8 92 ter statement is currently without content. Which relevant parts of
9 the 92 ter statement --
10 MR. EMMERSON: Let me --
11 JUDGE MOLOTO: -- were excluded by this Chamber?
12 MR. EMMERSON: Can I stand back for a moment and just explain the
13 position overall.
14 The document, as a whole, was not admitted at the previous trial,
15 the first point, the book, including this page.
16 JUDGE MOLOTO: Right.
17 MR. EMMERSON: Secondly, as a consequence, the 92 ter statement
18 admitted at the previous trial left the paragraph commenting on this book
19 empty of content because it was unsourced. It sought to refer to this
20 paragraph in the book and to make certain comments on it. Obviously, the
21 Trial Chamber in the previous trial, therefore, regarded that paragraph
22 as empty of content because it was unsourced in the same way as the
23 passages of the last witness's testimony that purported to produce and
24 comment on exhibits that were excluded. That, therefore, is the position
25 in relation to the 92 ter statement. It is the same 92 ter statement
1 which Your Honours have just admitted. Therefore, this document has not
2 the yet been admitted either in the previous trial as an -- as an
3 appendix to the 92 ter or in this trial because no application in this
4 trial has been made to admit it. It's quite correct that in August the
5 Prosecution indicated that they wished to do that. They then gave us
6 notification two days ago of what it was they were seeking to produce by
7 way of additional documentation. It doesn't come on that list. In other
8 words, they need -- please sit down for a moment and let me finish.
9 They need to make an application to Your Honours to admit this
10 document. It isn't one of the documents that they gave us notice they
11 were seeking to admit as an additional document. They obviously clearly
12 didn't realise or haven't take on board the fact that it is not yet in
13 evidence. That being the case, they must now, as Your Honour has
14 indicated and indicated right at the outset, establish provenance.
15 Whether authorship is a requirement to establish provenance or not may be
16 a subject for debate. But what is undoubtedly the case is that the
17 Trial Chamber would need to be satisfied about all matters relevant to
18 authenticity, reliability, and probative value. This witness, all he can
19 do is say: As far as I am concerned, X, Y, and Z are factually the
20 position. And then if the Prosecution subsequently applies to have the
21 book admitted they can say: Well, one of the things that goes to that is
22 that X, Y, and Z are said in that passage of the book. And then,
23 therefore, at least in that passage, there is an objective corroborative
24 evidence from this witness confirming what that passage says. That's not
25 the same as allowing this witness to prove provenance of a book or even a
1 passage of a book that he's not in a position to comment about either the
2 production or the manufacture of. So what Mr. Menon cannot do -- given
3 that this passage has never been admitted and that there is a currently
4 existing objection to it, whether or not he's notified us that he'd like
5 to, what he cannot do is to use this witness to prove the provenance of a
6 book he had nothing to do with.
7 MR. MENON: Your Honour, can I just correct one thing. The
8 notification that was provided to the Defence a couple of days ago was a
9 supplemental information sheet. What that contained was additional
10 information or corrections that this witness had indicated to us during
11 the proofing session. That was not meant to override the earlier
12 notification that had been sent to the Defence on the 20th of August,
13 notifying them that this book was among the exhibits that we intended to
14 show to the witness. And I think the Defence know that, and I think that
15 is a bit of a misrepresentation. And I go back to the Chamber decision
16 on 92 ter where it indicated that the subject of additional
17 examination-in-chief is based on written statements and transcripts which
18 have been disclosed to the accused, and that -- we satisfied that, so
19 there can be no issue here -- let me finish.
20 Mr. Emmerson keeps drawing it back to the initial trial and the
21 initial Trial Chamber's decision to exclude that exhibit. With respect,
22 Your Honour, once again, as Your Honours have aptly noted, this
23 Trial Chamber is not living in the shadow of the prior Trial Chamber.
24 MR. GUY-SMITH: Excuse me, Your Honour, whether or not this
25 Trial Chamber is living or not living in the shadow of the former trial
1 which now is going to become refrained every time the Prosecution wishes
2 to do something, is irrelevant. What is relevant is that this
3 Trial Chamber made an order. That order was that this matter was in
4 dispute and provenance had to be proved. Whether or not you are correct
5 or incorrect on the law, as has been suggested by Mr. Menon and
6 Mr. Rogers, once again, is also irrelevant. And I'll give you a perfect
7 example of that because we had it happen earlier today. Mr. Emmerson
8 stood and began to use a document, and there was objection taken to that
9 document as a result of it not being in conformity with this
10 Trial Chamber's order. And you said, and rightfully so: You need to
11 make an application, sir, before you attempt to use that document. At
12 which point Mr. Emmerson did that. There is nothing different there with
13 regard to the issue of your order.
14 MR. MENON: Your Honour --
15 MR. GUY-SMITH: It's really fundamental. An order was made and
16 now they're trying to get around the order that was made by saying you're
17 wrong on the law, or there is an issue with regard to notice. Those are
19 MR. EMMERSON: Can I --
20 JUDGE MOLOTO: [Microphone not activated]
21 MR. MENON: Your Honour --
22 JUDGE MOLOTO: Just a second. We are all jumping around and
23 talking all at the same time now. I have been notified we are well
24 beyond our time and that we must get out of court. You will have to
25 argue this point tomorrow. And I would like the parties to please bring
1 in the various orders that they've been referring to in hard copy.
2 We're taking an adjournment. We will come back tomorrow at 9.00
3 in the morning. Court adjourned.
4 --- Whereupon the hearing adjourned at 1.53 p.m.,
5 to be reconvened on Friday, the 26th day of
6 August, 2011, at 9.00 a.m.