1 Wednesday, 28 September 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Mr. Registrar please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in and around the courtroom.
10 This is case number IT-04-84bis-T, The Prosecutor versus
11 Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you so much.
13 Could we have the appearances today, please, starting with the
15 MS. KRAVETZ: Good morning, Your Honours. Daniela Kravetz,
16 Aditya Menon, Priya Gopalan, and our Case Manager, Line Pedersen.
17 JUDGE MOLOTO: Thank you so much.
18 And for the Defence, starting with Mr. Haradinaj's counsel.
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. For Mr. Balaj.
23 MR. GUY-SMITH: Gregor Guy-Smith for Mr. Idriz Balaj, together
24 with Ms. Colleen Rohan and Chad Mair.
25 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
1 And for Mr. Brahimaj.
2 MR. HARVEY: Richard Harvey for Lahi Brahimaj, assisted by
3 Mr. Luke Boenisch and Ms. Rudina Jasini.
4 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
5 Yes, ma'am.
6 MS. KRAVETZ: Good morning, Your Honours. If we could please go
7 into private session. There's a matter I wish to raise in relation to
8 the witness who is currently on the stand.
9 JUDGE MOLOTO: May the Chamber please move into private session.
10 [Private session]
11 Pages 1330-1331 redacted. Private session.
6 [Closed session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we are back in open session. Thank
20 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
21 Yes, Madam Kravetz.
22 MS. KRAVETZ: Your Honour, the next witness is Mr. Mehmet Togal
23 and my colleague Mr. Aditya Menon will be leading that witness.
24 Before the witness is brought in, I do wish to raise an issue
25 regarding witness scheduling for this sitting period just so everyone,
1 the parties are informed, as well as the Chamber. Following the
2 testimony of Mr. Togal, we will proceed with Witness 76. The next
3 witness should be Witness 3. Unfortunately, that witness has had some
4 problems arranging his travel documentation in the country where he
5 currently resides and he is not yet here in The Hague. We anticipate if
6 everything goes well he should be arriving this week. I haven't received
7 confirmation of that but that is what we are anticipating so he should be
8 available if everything goes well for testimony next week. But it is
9 unlikely that he will be able -- he won't be here this week to continue
10 after we conclude with Witness 76.
11 So I just wanted to alert the parties and the Chamber to that --
12 that matter.
13 JUDGE MOLOTO: Are we happy with the wisdom of interposing a
14 witness in the middle of this witness's testimony?
15 MS. KRAVETZ: I'm sorry, I didn't -- I didn't mean that. I -- we
16 do intend to continue with Witness 77 tomorrow. What I meant is once we
17 conclude with Witness 76, Witness 3 who was the following witness, will
18 not be here if he needs to testify this week. I don't know how long
19 we'll be with Witness 76. But it may happen that we conclude this week
20 and then we won't have a witness to fill until probably sometime next
21 week when Witness 3 arrives.
22 JUDGE MOLOTO: My apologies. Thank you so much for that
24 MS. KRAVETZ: [Overlapping speakers] ... Sorry I wasn't clear.
25 JUDGE MOLOTO: Notwithstanding, do we really need to have a
1 witness in between?
2 MR. GUY-SMITH: I don't believe we do. But that's entirely up to
3 the Prosecution.
4 My question is slightly different which is I understand we may
5 have this witness sometime next week.
6 JUDGE MOLOTO: Which one.
7 MR. GUY-SMITH: Witness 3. As I understand it. For scheduling
8 purposes and because there are some other matters that I know counsel has
9 to attend to, I believe the Chamber may as well, does the Prosecution
10 have any idea of when next week? Are we talking about Monday, are we
11 talking about Wednesday, because there are some other commitments that
12 exist and some planning has to be made.
13 JUDGE MOLOTO: Madam Kravetz.
14 MS. KRAVETZ: Your Honour, we're doing our best to speed up the
15 passport procedure in the country where the witness is residing. We are
16 in contact with VWS on that matter. I think we will have further
17 information this afternoon so as soon as we have that information, we
18 will circulate and e-mail to the parties and to the Chamber to inform
20 But at present time we're still trying to get some clearance as
21 to when exactly his travel document will be ready.
22 JUDGE MOLOTO: Thank you very much, Madam Kravetz.
23 MS. KRAVETZ: Thank you.
24 MR. EMMERSON: I don't know whether the Trial Chamber would think
25 later today would be opportunity just to hear some further thoughts on
1 whether in fact, if there are such difficulties and given the rulings
2 that the Trial Chamber has made since the conclusion of the last session,
3 whether it is it in fact necessary for this witness to attend. If there
4 are difficulties in securing his attendance, the Trial Chamber I think is
5 fully aware that the Defence does not require his attendance, and that
6 the position at the moment -- I appreciate that Your Honours considered
7 the question at the end of the last session. But this is a witness who
8 was called and fully cross-examined on the last occasion. He has given a
9 further witness statement concerning certain limited additional matters
10 which the Defence, as I understand it are prepared to agree without the
11 need for cross-examination.
12 And I did raise the practicalities on the last occasion. But it
13 may be that some thought needs to be given to whether it is really
14 necessary for this witness to be brought here, given the -- nobody is
15 asking for him to be brought here, apart from the Trial Chamber. It's a
16 matter for the Trial Chamber. The Prosecution's position was to have his
17 statement admitted. The Defence is content with that course. And the --
18 the -- the arrangements now are proving, in practical terms, difficult.
19 And since the Prosecution applied for his witness statement to be -- and
20 testimony to be admitted, under Rule 92 and since the Defence agree with
21 that course, subject to the eliciting only of the additional information
22 which is contained in an additional statement to the Prosecution which is
23 capable of agreement, it may be that all of those difficulties can be
24 obviated. I wonder whether it would be sensible for some thoughts to be
25 given to that today.
1 JUDGE MOLOTO: Thought might be given to that. I'm sure thought
2 must have been also given to the matter when the Chamber decided to call
3 the witness, notwithstanding what you have outlined, Mr. Emmerson.
4 As I sit here now without the decision before me, I do not have
5 any clear recollection of the thinking of the Chamber at the time it
6 decided the way it did. And -- but, yes, we'll -- the Chamber will give
7 thought to the matter in the day, and if there's any change you would be
8 advised. If you don't hear from us, it means there's no change.
9 MR. EMMERSON: Very well.
10 JUDGE MOLOTO: Okay.
11 MS. KRAVETZ: Yes, Your Honour, I just wanted to clarify: It's
12 not that we have difficulties bringing him. It is just simply a travel
13 document needed to be reissued and that's just taking some time. And
14 Your Honours have already considered and rejected Mr. Emmerson's
15 application he is making and this is it at transcript 1119 of the -- of
16 the transcript of these proceedings and, of course, the decision
17 Your Honours issued on the 92 ter motion that we had filed.
18 Thank you.
19 JUDGE MOLOTO: Thank you so much.
20 Yes, Mr. Harvey.
21 MR. HARVEY: Just when you thought it was safe to carry on.
22 Just this, if this witness is indeed to be brought, there is
23 outstanding my motion which was filed last Friday -- sorry, on -- yes,
24 submitted last Friday, I think, received on Monday, in relation to
25 various items of disclosure that the Prosecution is on notice of
1 concerning any assistance in any form given to witnesses who may be
2 relocated in other countries. From what -- I've received a blanket
3 refusal for any information from the Prosecution. The Chamber is seized
4 of the motion, at least there is no response from the Prosecution and I
5 don't expect it will be any different from what I have already indicated
6 in the confidential annexes to my motion. But in the event that the
7 Prosecution, as it appears, is now giving assistance to a witness who
8 requires a travel document, that just brings up and heightens the
9 concerns that I have that witnesses are being given at least the
10 impression, that by assisting the Prosecution, they may be helping
11 themselves in their immigration matters.
12 Of course, the Prosecution is under a duty to provide assistance.
13 That isn't the issue. Once the Chamber has ordered a witness to be
14 brought to attend, then, of course, the organs of the Tribunal will do
15 what is necessary to help that witness. But it's -- there are two issues
16 here: One, the help that is given; and, two, the impression that is
17 given in the mind of the witness that they may be helping themselves by
18 helping the Prosecution. I'm sure the Chamber takes my point.
19 I just want to remind the Chamber, if I may respectfully, that I
20 have a motion pending, and there will have to be some decision in
21 relation to that before this witness is called to testify.
22 Thank you.
23 JUDGE MOLOTO: Wait a minute, Mr. Harvey. I'm not quite sure
24 what that last statement is correct.
25 There's a motion before us. It has got to be responded to.
1 There might be a reply and only after then can the Chamber give you a
2 decision. Are you saying do you ask that, pending the decision, all
3 witnesses who are affected by that motion not be called in your motion?
4 MR. HARVEY: I need to double-check my motion to see whether I
5 have formally asked for that, and it may be that I will need to formally
6 ask for that.
7 Much depends on the ambit of this witness's testimony. As we
8 stand here, our understanding is that he is only being called to testify
9 to the additional matters that he -- that he provided a further statement
10 to the Prosecution earlier this year.
11 JUDGE MOLOTO: As we heard this morning, and in a couple of days
12 before, none of the parties wanted this witness to come for
13 cross-examination. So the parties seem to be quite happy about this
14 witness's testimony. This witness is coming here because the Chamber
15 wants him to come here.
16 MR. HARVEY: Your Honour, absolutely. But since I don't know
17 what this witness is going to say when he gets here, there may be
18 additional matters that will come out that will require
19 cross-examination. That's all.
20 JUDGE MOLOTO: Fair enough. I understand that [Overlapping
21 speakers] ... that I understand. But why -- why should we pend the
22 witness's attendance in court pending your -- pending the decision on
23 your motion?
24 MR. HARVEY: Well, Your Honour, I haven't actually asked you to
25 suspend his appearance.
1 JUDGE MOLOTO: That's why I'm commenting on what you were saying
2 earlier on which I said didn't think it was absolutely correct because it
3 doesn't stand in your motion.
4 MR. HARVEY: You are quite right.
5 JUDGE MOLOTO: Thank you.
6 MR. HARVEY: And let me reflect on it. If I do think it
7 appropriate to ask you, then I will formally ask you. I have not asked
8 you, and I will therefore sit down right now.
9 Thank you.
10 JUDGE MOLOTO: Thank you very much, Mr. Harvey.
11 MS. KRAVETZ: Your Honour.
12 [Trial Chamber confers]
13 JUDGE MOLOTO: I see you're on your feet.
14 MS. KRAVETZ: Yes, Your Honour --
15 JUDGE MOLOTO: I guess everybody wants to spend this time in
16 court today.
18 MS. KRAVETZ: I just wanted to clarify one matter in relation to
19 what Mr. Harvey said. He said that we appeared to be giving assistance
20 who requires a travel document. It is, in fact, VWS that's making the
21 arrangements. I believe I said that. And we have been in contact with
22 VWS in relation to those travel arrangements. So -- it's -- that is
23 completely an incorrect statement.
24 JUDGE MOLOTO: Sure. And Mr. Harvey did indicate that he is
25 quite aware that the organs of the Tribunal are duty-bound to give
1 assistance to witnesses who are supposed to come here.
2 Thank you so much, Madam Kravetz.
3 I guess there's nothing else from anybody.
4 Mr. Emmerson, you don't have anything to raise. Thank you very
6 Mr. Guy-Smith? Nothing.
7 And Mr. Harvey, nothing.
8 Thank you so much. We'll then stand adjourned and come back
9 tomorrow at 9.00.
10 Court adjourned.
11 MR. EMMERSON: I think there may be a cross communication. I
12 think we're all expecting to proceed with the evidence today,
13 Your Honour.
14 MS. KRAVETZ: Yes, we have -- witness Mehmet Togal is waiting.
15 We believe that he is going to be quite a short witness and we believe
16 that he will complete his evidence today.
17 MR. EMMERSON: [Overlapping speakers] ...
18 MS. KRAVETZ: I think we may have been speaking at
20 JUDGE MOLOTO: Indeed, because I did ask about the wisdom of
21 interposing a witness in the middle of somebody else's testimony and I
22 thought I got the impression that the answer that said, no, it's not
23 going to happen.
24 MR. EMMERSON: No, I think the answer that Ms. Kravetz gave you
25 was we are going to proceed, in fact. The suggestion, I think, is now
1 that we go straight ahead with Mr. Togal, deal with him, and then move
2 straight into Witness 76 and we can use the whole day.
3 MS. KRAVETZ: Yes. That is the suggestion and next -- tomorrow
4 morning we can start with Witness 77, conclude him, and then continue --
5 JUDGE MOLOTO: So you plan to finish two witnesses today, this
6 one and 76.
7 MS. KRAVETZ: I do not know if we will be able to finish both
8 witnesses, but at least Mr. Togal I'm pretty confident we will be able to
9 conclude his evidence. Thank you.
10 JUDGE MOLOTO: All right. Thank you so much, Madam Kravetz.
11 Call your witness.
12 MS. KRAVETZ: The Prosecution calls Mr. Mehmet Togal, and my
13 colleague Mr. Menon will be dealing with that witness.
14 JUDGE MOLOTO: Thank you so much.
15 Mr. Menon, good morning.
16 [Trial Chamber confers]
17 JUDGE MOLOTO: This witness still at the hotel?
18 MR. MENON: Your Honour, I believe the witness is here.
19 JUDGE MOLOTO: Thank you.
20 [The witness entered court]
21 JUDGE MOLOTO: Good morning, sir. May you please make the
23 THE WITNESS: I solemnly declare that I will speak the truth, the
24 whole truth, and nothing but the truth.
25 JUDGE MOLOTO: Thank you very much. You may be seated. And good
1 morning to you.
2 THE WITNESS: Thank you. Good morning.
3 JUDGE MOLOTO: Yes, Mr. Menon.
4 WITNESS: MEHMET TOGAL
5 Examination by Mr. Menon:
6 Q. Good morning, Mr. Togal.
7 A. Good morning.
8 Q. I see that Mr. Togal has the statement that he has given. I
9 don't think he needs it for this purpose so whatever I deal with --
10 whatever I show him will be brought up in e-court or shown to him in hard
11 copy so if the Court Usher could recover the binder in front of him.
12 Sir, I would ask that after I pose a question to you, that you
13 allow for a slight pause before answering since we're both speaking in
14 English. This will allow the court interpreters time to catch up with
15 the question I'm posing to you.
16 Let me begin, sir, by just asking you to state your full name for
17 the record?
18 A. My name is Mehmet Oguz Togal.
19 Q. And, sir, what is your date of birth?
20 A. 17 January 1968.
21 Q. And your place of birth, sir?
22 A. Antakya.
23 Q. And in which country is that, sir, Antakya?
24 A. Hatay province of Turkey.
25 Q. Thank you, sir. Sir, did you provide a signed statement to the
1 Office of the Prosecutor of this Tribunal on the 10th of December, 2010?
2 A. Yes, I did.
3 Q. And, sir, have you had a chance to review that statement again
4 after you arrived in The Hague?
5 A. Yes, I did.
6 MR. MENON: And, Your Honour, if we could call up on e-court
7 65 ter 3073. And if we could go to page 4 of that document. Actually,
8 if we can just stay on the cover page for a second.
9 Q. Sir, is this the statement that you provided on the 10th of
10 December, 2010?
11 A. Yes, it is.
12 Q. If we could go to page 4 of the document.
13 And, sir --
14 JUDGE MOLOTO: Just a second. I'm not quite -- this first page
15 says date of telephone interview 1st and 2nd of August, 2010. And you're
16 saying the statement was 10th of December, 2010. Do we have a different
17 date somewhere that I'm not seeing?
18 MR. MENON: Yes, we do, Your Honour. If you were to go to the
19 last page of the statement you will see the date on which the witness
20 signed the statement.
21 MR. GUY-SMITH: Well, perhaps you wish to confirm that as being
22 the date he signed the statement [Overlapping speakers] ...
23 MR. MENON: [Overlapping speakers] ... I can do that.
24 Q. Sir, can we go back to the first page then.
25 You see there, it's not -- sir, you see the reference to
1 telephone interview on the 1st and 2nd of August, 2010. Can you confirm
2 for us, sir, that you were, in fact, interviewed via telephone on those
3 dates by a Prosecution investigator?
4 A. Yes, I do.
5 Q. And if we could go to the last page of the document.
6 Is that your signature on the document in front of you, sir?
7 A. Yes, sir.
8 Q. And --
9 A. It's my signature.
10 Q. Thank you, sir. Can you confirm for us, sir, again, that you
11 signed this document on the 10th of December, 2010?
12 A. Yes, I did. I sign it and -- I sign it, and I made it to court,
13 to Prosecution office.
14 Q. If we could now go back to page 4 of the document.
15 Sir, I would just ask that you read paragraph 11(C) in front of
16 you. And once you've done that, just let us know. I don't --
17 A. Yes.
18 Q. Have you finished reading that, sir?
19 A. Yes, I did.
20 MR. MENON: Your Honour, with the Court's permission, I would ask
21 that the witness be shown 65 ter 3003 which is among the documents listed
22 for this particular witness, and I have the hard original version of it.
23 It will make it a little more efficient if the witness sees the hard copy
24 of it.
25 JUDGE MOLOTO: Is only my computer that is seized? Mine was ...
1 [Trial Chamber and Registrar confer]
2 JUDGE MOLOTO: [Microphone not activated] ... you may proceed.
3 [Trial Chamber and Registrar confer]
4 MR. MENON:
5 Q. Sir, you have the document in front of you. Can you just confirm
6 for us that the document that you referred to in paragraph 11(C) of your
7 statement is the same document that you have in your hand right now?
8 A. Yes, I do.
9 MR. MENON: That's 65 ter 30003.
10 Q. And can you note for the record -- can you just turn to the front
11 of that document -- the front. What is the eight-digit number on the
12 front of that document, sir. Can you read that out?
13 A. U0083555.
14 Q. Thank you, sir. And can you open the first page of that
15 document, sir?
16 A. Yes.
17 Q. And in your statement you indicated: "I have noticed on page
18 U0083557 that there is my handwritten name 'M. Oguz Togal' with proper
19 diacritics and dated 19/06/2002."
20 A. It should be U0083556.
21 Q. That's the page on which your name and date appear?
22 A. Yes.
23 Q. Thank you, sir.
24 If the Court Usher can just get the document back for me.
25 Beyond those corrections, sir, are there any other corrections
1 which need to be made to the statement you signed on 10th December 2002
3 A. No, everything I stated in the statement is right and correct.
4 Q. And, sir, if you were asked now with the exceptions of the
5 corrections that you have just made, if you were asked questions about
6 the subject matter in the statement which you signed, would your answers
7 reflect what is contained in that statement?
8 A. Do you want me explain what I wrote in the statement?
9 Q. No. I just want you to confirm for us whether, if I were to ask
10 you questions about what's contained in your statement, whether your
11 answers would be the same as what is already in the statement.
12 A. Yes. It's same.
13 Q. Okay.
14 MR. MENON: Your Honour, I think there is a problem with e-court
15 or LiveNote. I don't know if everybody is having that problem.
16 JUDGE MOLOTO: That's why I had a technician here next to me
17 right now.
18 MR. MENON: Mine is frozen. I'm happy to proceed obviously. I'm
19 not sure how the other parties feel.
20 MR. EMMERSON: Mine is active. That is because it is appearing
21 on the central computer screen.
22 JUDGE MOLOTO: I'm carrying on the central computer screen. The
23 other one is [Overlapping speakers].
24 MR. MENON: I'm happy to proceed though.
25 JUDGE MOLOTO: Yeah, proceed.
1 MR. MENON: Your Honour, I believe that the witness indicated
2 that he would -- his answers would be the same if he were asked the same
3 questions in relation to the statement which he signed. And on that
4 basis I would seek the admission of this particular statement which is
5 65 ter 03073.
6 JUDGE MOLOTO: Okay. 65 ter 3073 is admitted. May it please be
7 given an exhibit number.
8 THE REGISTRAR: Your Honour, 65 ter 03073 shall be assigned
9 Exhibit P302.
10 MR. MENON: And I would seek the admission, as well, of
11 associated exhibits.
12 JUDGE MOLOTO: Yes, Mr. Menon.
13 MR. MENON: I would seek the admission of associated exhibits of
14 65 ter numbers 3003, 3004, and 3005.
15 JUDGE MOLOTO: I have been aware of 3003. What is 3004 and what
16 is 3005?
17 MR. MENON: 3004 is the search record against documents relating
18 to the -- contains documents relating to the search that was conducted by
19 the witness. It's among the documents that we listed in our 92 ter
20 application as associated exhibits.
21 3005 is a single document that is actually duplicated within
22 3004. It's probably redundant to admit 3005, but it was on our
24 JUDGE MOLOTO: Sure, but my problem is that we can only admit
25 things that that witness has looked at and he has looked at 3073 and
1 3003. In court here, he hasn't identified 3004 and 3005.
2 MR. MENON: He has identified it in his statement and so the
3 statement is in evidence [Overlapping speakers] ...
4 JUDGE MOLOTO: It's an annex to the statement.
5 MR. MENON: The document itself is commented upon by the witness
6 in his statement. I can refer Your Honours to the relevant paragraphs so
7 since the statement itself is in evidence, obviously, his comments on
8 those documents -- on those documents are also a part of the record.
9 JUDGE MOLOTO: I understand you -- [Overlapping speakers] ...
10 MR. MENON: That would be a sufficient basis for the admission of
11 the documents.
12 JUDGE MOLOTO: Thank you so much.
13 Mr. Guy-Smith.
14 MR. GUY-SMITH: Yes, my microphone is not working so I am
15 speaking a bit louder right now.
16 Apparently, this one is working now.
17 Now it is working. Excellent.
18 I think it might be a bit easier for just for purposes of clarity
19 of the record with regard to 3004 that Mr. Menon go through the process
20 of having Mr. Togal take a look at that particular associated exhibit and
21 confirm or deny his familiarity with the, so we're clear about each and
22 every document that is coming in with this particular witness.
23 Now 3005 I'm not sure what my position is yet because I believe,
24 as he says, it is redundant so it's irrelevant and shouldn't be put in.
25 And I take it that Mr. Menon at this point is not attempting to introduce
1 the document Mr. Togal looked at, which was 3003. Because if he is
2 attempting to do this at this point in time, then there is a pending
3 issue with regard to the admissibility of this document and its probative
4 value based upon this Court's order and decision of the 23rd of August,
5 2011, paragraph 47, in which the Chamber stated, and I quote:
6 [As read] "At the outset the Chamber takes account of the
7 Appeals Chamber ruling holding that 'the difference context in which the
8 two trials are held mean that evidentiary decisions proper in one case
9 may not be proper in the other. In this situation the proper of
10 inconsistency on an evidentiary point between a trial and a retrial is
11 not unfair.'"
12 This was an issue that we had raised because the previous
13 Trial Chamber had ruled this particular document, and by that I mean,
14 3003 inadmissible.
15 "The expected evidence of Mehmet Togal who seized the notes in
16 the Accused Balaj's home may cast light on the circumstances surrounding
17 his discovery of the diary. In light of the above, the Chamber will
18 allow hearing the testimony of Mehmet Togal to assist in determining the
19 diary 's probative value and admissibility. The Chamber will defer its
20 decision on the admissibility of the diary and will admit Mehmet Togal's
21 statement into evidence, once Rule 92 ter(A) is complied with. If he is
22 available for cross-examination and attests to the accuracy of his
23 written evidence. The Chamber does not find that doing so after renewed
24 litigation prejudices the accused."
25 Based upon this Chamber's decision, we haven't reached the point
1 where the admissibility of what has been termed as Mr. Balaj's diary -
2 and that is a point of contention - is yet admissible. His statement is.
3 Diary, as it's been termed, is not. And Mr. Menon knows that. Because
4 he is aware of the decision.
5 MR. EMMERSON: Can I add a few words, please, if only because the
6 parties were joined on this issue in litigation and submissions were made
7 by both Haradinaj Defence and the Balaj Defence which culminated in the
8 decision of the 23rd of August.
9 Just to remind Your Honours, the background to this issue was a
10 decision of the original Trial Chamber in November 2007, the 30th of
11 November, 2007, paragraph 11, the reason why this document was to be
12 regarded as inadmissible was because there was no evidence as to the
13 handwriting in which it was compiled, and, therefore, authorship. No
14 evidence as to the source of the information substantively contained
15 within it or the way in which the source and the author may have
16 communicated and therefore it was impossible to establish probative value
17 of the substance of the notes.
18 That's obviously not something that Mr. Togal is in a position to
19 assist with at all.
20 So the basis for the original Trial Chamber's decision was that
21 these were notes, the authorship of which was unproven and incapable of
22 being proved, and that the source of the information was unknown.
23 Submissions were made to this Trial Chamber on behalf of both
24 Mr. Balaj and Mr. Haradinaj that the same ruling should follow, not
25 because it was binding but because there was no difference in context
1 between this trial and the previous trial which would justify a different
2 evidentiary ruling. The Appeals Chamber has indicated in the passage
3 that Mr. Guy-Smith just read to you that if the context is different, if
4 there is a different relevance equation, then conflicting evidentiary
5 decisions would say not be unfair. But, of course, the flip side of that
6 coin is, unless the Prosecution can show that the relevance matrix is
7 different in this trial in relation to that document than it was in the
8 last trial, then conflicting rulings would be unfair.
9 The Trial Chamber ruled that the issue of admissibility of the
10 document, the diary, would be deferred, and wished to hear the testimony
11 of Mr. Togal in order to assist in general terms in -- in determining its
12 probative value and admissibility. That's paragraph 47 of this
13 Trial Chamber's decision of the 23rd of August of this year, passage that
14 Mr. Guy-Smith read out to you. In other words, you have deferred
15 determination of admissibility pending the testimony of Mr. Togal. But,
16 of course, Mr. Togal's testimony cannot begin to touch upon the reasons
17 why the original Trial Chamber determined that this was inadmissible and
18 the ruling of the Appeal Chamber is that conflicting decisions on
19 admissibility will be fair if there is a difference relevance matrix. In
20 other words if it is relevant to some different issue. So the suggestion
21 of Mr. Menon that simply by admitting the statement of this witness it
22 produces the exhibit is obviously wrong.
23 But more fundamentally the Trial Chamber is going to have to ask
24 Mr. Menon to explain what is different in this trial that would justify a
25 different evidentiary ruling because what the Appeals Chamber did not say
1 was this Trial Chamber could fairly reach contradictory rulings on the
2 same factual and materiality basis. In other words, what the
3 Appeals Chamber naturally indicated is that if the issues of relevance
4 are different then a different ruling can follow fairly. But if the
5 issues of relevance are the same, then obviously the reverse is true.
6 MR. MENON: May I respond to that.
7 JUDGE MOLOTO: Of course, you may, Mr. Menon.
8 MR. MENON: Frankly, I think Mr. Emmerson is reading something
9 into the Appeals Chamber decision which simply is not there.
10 I can read the relevant passage, and what the Appeals Chamber
11 simply said is that it was unconvinced by Haradinaj's contention that
12 decisions regarding the admission of evidence made in the context of his
13 first trial should be binding on the Trial Chamber conducting his
15 The different context in which two trials are held mean that
16 evidentiary decisions proper in one case may not be proper in another
17 case. That's for Your Honours to decide.
18 MR. EMMERSON: [Overlapping speakers] ... Could you read the
19 following sentence, please.
20 MR. MENON: [Overlapping speakers] ... Let me finish.
21 MR. EMMERSON: Following sentence.
22 JUDGE MOLOTO: Mr. Menon.
23 Mr. Emmerson, when you speak and you spoke for a long time,
24 nobody interrupted you.
25 MR. MENON: I'll read the next sentence, but just let me finish.
1 "In this situation, the prospect of inconsistency on an
2 evidentiary point between a trial and a retrial is not unfair and does
3 not risk jeopardising public confidence in the administration of justice
4 by the Tribunal."
5 Your Honours, it is for Your Honours to decide, based on the
6 circumstances of this case, whether this particular exhibit has --
7 Exhibit 3003 has sufficient probative value to be admitted and it has to
8 be determined that to a prima facie standard. That's for Your Honours to
9 decide. You're not bound by what the prior Trial Chamber decided. I
10 think you made that clear on various occasions during this particular
12 Now, in terms of this witness's evidence, the limits of his
13 evidence are known to everybody and I don't think that the Trial Chamber
14 would have allowed the Prosecution to -- to call the witness if it didn't
15 consider that his evidence would have served as a sufficient basis for
16 admitting this particular exhibit.
17 JUDGE MOLOTO: You see, the problem, Mr. Menon, is that at this
18 stage, the -- the Prosecution has not indicated the purpose for which
19 this exhibit is being tendered, and therefore the presumption is that it
20 is being tendered for the truthfulness of its contents.
21 MR. MENON: Yes.
22 JUDGE MOLOTO: Now the question is can this witness attest to
24 MR. MENON: He can for the purposes of admissibility,
25 Your Honour. The standard on admissibility is a prima facie standard.
1 So it has to be apparent on its face, on the face of the evidence, that
2 this exhibit is admissible through this witness's evidence. And what
3 this witness establishes through his evidence is that this particular
4 diary was recovered in Idriz Balaj's home in a bedroom -- in the bedroom
5 of Idriz Balaj's home, amongst his personal items. The exhibit itself is
6 written from Mr. Balaj's perspective. It contains his name, date of
7 birth, and place of birth on the third page. That, in our view, Your
8 Honours, is sufficient to meet the standard, a prima facie standard.
9 In terms of how the prior Trial Chamber ruled, well, frankly,
10 they imposed a standard which was far too high in insisting on
11 authorship, on absolute certainty with respect to authorship.
12 So I would submit, Your Honours, that the exhibit is admissible
13 and, frankly, when I look at the 92 ter decision that Your Honours
14 issued, I don't see any distinction between this particular exhibit or
15 any other associated exhibit. In fact, in the disposition, all that
16 Your Honours indicated was that it would defer its decision on the
17 admission of items tendered as associated exhibits until the time when
18 the witnesses through whom these items are proposed to be tendered appear
19 in court. So there is no distinction between this particular exhibit,
20 3003, and any of the other associated exhibits.
21 Now the witness has -- has -- his statement has been admitted
22 into evidence there is a sufficient basis there within his statement to
23 admit this particular diary because there -- the prima facie standard for
24 admissibility has been met.
25 JUDGE MOLOTO: I -- I don't -- I don't argue with that. What I
1 do argue with in your argument is the purpose for which it is being
3 MR. MENON: Your Honour, yes, it is being tendered for the truth
4 of the -- the truth of its contents. There is no question about that.
5 JUDGE MOLOTO: But can the witness testify to that? He has just
6 said -- he has just said in his statement, the written statement that has
7 been tendered, P302, that he doesn't -- he didn't even read the contents
8 because he doesn't even know the language. He can't tell us anything
9 about the authenticity of the contents.
10 MR. MENON: Your Honour, but our submission is for the purposes
11 of making an admissibility ruling his evidence is sufficient.
12 As far as the weight that Your Honours decide to give to the --
13 this particular exhibit, well, that's a matter for Your Honours to
14 consider once you have received all of the evidence, once you have heard
15 all of the evidence. And, at that point, you may or may not decide to
16 give this particular exhibit weight. You may decide to give it much
17 weight; you may decide to give it very little weight. That is a
18 determination to be made at a later stage, once the parties have made
19 submissions on the evidence.
20 JUDGE MOLOTO: The question of weight is different from the
21 question of purpose.
22 Anyway I have heard you, and I [Microphone not activated].
23 [Trial Chamber confers]
24 JUDGE MOLOTO: The Chamber by majority, Judge Delvoie dissenting,
25 will not admit the diary.
1 MR. EMMERSON: I have no questions, Your Honour.
2 JUDGE MOLOTO: Pardon.
3 MR. EMMERSON: I have no questions in cross-examination in those
5 JUDGE MOLOTO: I don't know whether Mr. Menon is finished with
6 his examination-in-chief.
7 MR. MENON: I haven't, Your Honour. I would actually ask whether
8 the Chamber tends to follow it up with a written decision because we
9 obviously may seek certification to appeal the decision or other
11 JUDGE MOLOTO: [Microphone not activated]
12 MR. MENON: And then the other issue is I'm not sure if Mr. Balaj
13 still requests further clarity on the other associated exhibits, but I
14 don't think that the same issues with respect to --
15 JUDGE MOLOTO: You took the position that 3005, you, yourself,
16 said, it is redundant, and therefore he suggests that he get it out of
17 the file.
18 MR. MENON: I would still ask that 3004 be admitted into
19 evidence. It's the search record. The witness talks about it in
20 paragraph 7, 8, and 11(D) of his statement and they meet the standard for
21 an associated exhibit.
22 JUDGE MOLOTO: Mr. Guy-Smith.
23 MR. GUY-SMITH: No objection.
24 JUDGE MOLOTO: Well, Mr. Registrar, 3004, can we give it a
25 number, please. The document is admitted into evidence.
1 THE REGISTRAR: Your Honours, 65 ter number 3004 shall be
2 assigned Exhibit P303. Thank you.
3 JUDGE MOLOTO: Thank you.
4 MR. MENON: With Your Honours' leave, I'll read out the 92 ter
5 summary for this particular witness.
6 JUDGE MOLOTO: Thank you. You may proceed, Mr. Menon.
7 MR. MENON: The witness is a member of the Turkish police.
8 Between the 14 April 2002 and 16 April 2003, the witness was seconded to
9 work as a police officer --
10 COURT REPORTER: Slower, please.
11 MR. MENON: -- for the UNMIK civilian police. The witness worked
12 with the Central Criminal Investigation Unit of the UNMIK police. He was
13 deployed to the drug team.
14 On 18 June 2002, the witness participated in a search of
15 Idriz Balaj's home in Djakovica municipality. Among the items which the
16 witness found during the search were a handwritten notebook, and Idriz
17 Balaj's KLA identification card. These items were found in the bedroom
18 of Idriz Balaj's home. All the items recovered during the search of
19 Idriz Balaj's home were handed over to the police officer who was in
20 charge of the Central Criminal Investigation Unit safe room.
21 That ends my 92 ter summary of the witness, Your Honour, and I
22 have no further questions for this witness.
23 JUDGE MOLOTO: [Microphone not activated]
24 MR. EMMERSON: No questions, Your Honour.
25 JUDGE MOLOTO: [Microphone not activated]
1 MR. GUY-SMITH: Based on the ruling made by the Chamber, I have
2 no cross-examination.
3 JUDGE MOLOTO: [Microphone not activated]
4 MR. HARVEY: No questions. Thank you, Your Honours.
5 JUDGE MOLOTO: [Microphone not activated].
6 Sir, that brings us to the end of your testimony for the day.
7 Thank you so much for coming to testify at the Tribunal. You are now
8 excused. You may stand down and travel well back home.
9 THE WITNESS: Thank you.
10 JUDGE MOLOTO: You're welcome.
11 [The witness withdrew]
12 MR. MENON: Your Honour, I am alerted that we are to the fact
13 that we are in a position to proceed with the next witness. She is a
14 protected witness so we'll need to take an early break so that they can
15 set up the screen.
16 JUDGE MOLOTO: Okay. We're ten minutes from the next break so we
17 will have a ten-minute longer break.
18 [Trial Chamber confers]
19 JUDGE MOLOTO: How long is this witness likely to take? Are we
20 going to finish her today?
21 MR. MENON: I'm told that this witness, at least for the
22 Prosecution, that our direct examination should not exceed 30 minutes.
23 I'm not sure how much cross-examination the Defence counsel will have.
24 MR. HARVEY: Your Honours, I will be bearing the brunt of most,
25 if not all, of the cross-examination of this witness. Without having
1 seen how she responds to questioning, it is very difficult for me to say.
2 I have potentially substantial cross-examination for this witness and we
3 may not finish her today.
4 JUDGE MOLOTO: That's going to cause a logistical problem because
5 tomorrow we must finish 77 or carry on with 77.
6 If can you take a seat, Mr. Emmerson.
7 MR. HARVEY: I can say in relation to 77, having consulted with
8 my colleagues, first of all, that I have no cross-examination
9 [Overlapping speakers] ...
10 JUDGE MOLOTO: I understand that.
11 MR. HARVEY: I know that their cross-examination is unlikely to
12 exceed an hour, maybe possibly maximum hour and a half.
13 JUDGE MOLOTO: We don't know how long the re-examination is going
14 to take. The problem is -- what the Chamber would like to avoid is
15 hearing this next witness now partly and then having to put -- put aside
16 and go back to 77 and then come back to this witness. This is what we
17 are trying to avoid.
18 MR. HARVEY: I appreciate that. It -- I can't give a guarantee.
19 It may well be that I will be done with this witness today but we've all
20 been there.
21 JUDGE MOLOTO: You've said to me now to the Chamber now that are
22 you -- you can't guarantee that.
23 Yes, Mr. Emmerson.
24 MR. EMMERSON: Can I just indicate, being practical about this,
25 what is left of Witness 77 is not going to take more than one session in
2 JUDGE MOLOTO: But you don't know how much re-examination is
3 going to take.
4 MR. EMMERSON: I don't know -- [Overlapping speakers] ...
5 JUDGE MOLOTO: [Overlapping speakers] ...
6 MR. EMMERSON: Ms. Kravetz can perhaps give us an idea.
7 MS. KRAVETZ: Yes, Your Honour, I can give an idea with regard to
8 the cross-examination that's taken place so far, so far I have maybe 20
9 minutes of re-direct but I know there is going to be further
10 cross-examination, so I may be longer in re- exam.
11 What I would suggest, Your Honours, is that we proceed with the
12 next witness and conclude her tomorrow morning and then deal with the
13 remainder of Witness 77's evidence. That way we use the rest of today.
14 The witness is here and she's ready to be brought into court.
15 MR. EMMERSON: I totally endorse that approach, if I may say so,
16 because if it's 20 minutes, even if there's another ten, which there
17 won't be from the last few questions I have - I had almost finished
18 cross-examination - we will undoubtedly finish Witness 77 in -- within
19 less than one session. That being the case there are two sessions spare
20 tomorrow to complete this witness's evidence, and frankly, given the
21 compass of her evidence, it's, I would have thought, inconceivable that
22 we would over-run.
23 JUDGE MOLOTO: Okay, fine. We'll call this witness after the
25 We will take a break now and come back at quarter to.
1 Court adjourned.
2 --- Recess taken at 10.09 a.m.
3 --- On resuming at 10.47 a.m.
4 JUDGE MOLOTO: May the Chamber please move into closed session.
5 MS. GOPALAN: Before the witness is brought in, I have a few
6 words to say.
7 JUDGE MOLOTO: Okay. Before we do that, just hold it. Hold it.
8 Before we move into closed session.
9 Yes, ma'am.
10 MS. GOPALAN: I'd just like to introduce a new team member who
11 has joined us this morning, Mr. Andrej Micovic. He is a legal intern on
12 the case.
13 JUDGE MOLOTO: Thank you so much.
14 MS. GOPALAN: And could we please move into private session,
15 Your Honours.
16 JUDGE MOLOTO: May the Chamber please move into private session.
17 [Private session]
11 Page 1363 redacted. Private session.
7 [Closed session]
23 [Open session]
24 THE REGISTRAR: Your Honours, we are in open session. Thank you.
25 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
1 Thank you, Madam Gopalan. You may proceed.
2 MS. GOPALAN:
3 Q. Ma'am, could I just ask you if you're able to hear me well in a
4 language that you understand?
5 A. No. Oh, yes. Yes, I am.
6 Q. So you are able to hear me clearly?
7 A. Yes.
8 Q. Thank you.
9 MS. GOPALAN: Your Honours, could we move into private session,
11 JUDGE MOLOTO: May the Chamber please move into private session.
12 [Private session]
2 [Open session]
3 THE REGISTRAR: Your Honours, we are back in open session.
4 JUDGE MOLOTO: Thank you.
5 Yes, Madam Gopalan.
6 MS. GOPALAN:
7 Q. Ma'am, did you provide a statement to the Office of the
8 Prosecutor in September 2010?
9 A. Yes.
10 Q. And have you recently had your statement read back to you?
11 A. Yes.
12 Q. And does this statement accurately reflect what you said when you
13 were interviewed?
14 A. Yes. Everything is correct.
15 Q. And so if you were asked the same questions today, would you
16 provide the same answers?
17 A. Yes, I would give the same answers.
18 Q. Thank you, ma'am.
19 MS. GOPALAN: Your Honours, I seek to tender the witness's
20 statement into evidence, under seal, please. It's 65 ter 03040. And I
21 also have an unredacted -- sorry. A redacted version to be tendered.
22 And that is 03040.1.
23 JUDGE MOLOTO: Okay, let's deal with the first 65 ter number
25 65 ter 03040 is tendered into evidence. May it please be given
1 an exhibit number. Under seal.
2 THE REGISTRAR: Your Honours, 65 ter 3040 shall assigned
3 Exhibit P304, under seal.
4 JUDGE MOLOTO: Thank you so much.
5 And the next one was ...?
6 MS. GOPALAN: 03040.1.
7 JUDGE MOLOTO: Oh, 40.1.
8 MS. GOPALAN: Yes.
9 JUDGE MOLOTO: That's admitted into evidence may it please be
10 given an exhibit number.
11 THE REGISTRAR: Your Honour, 65 ter 0304.1 shall be assigned
12 Exhibit P305. Thank you.
13 JUDGE MOLOTO: Thank you.
14 MS. GOPALAN: With Your Honours leave, I would like to read a
15 summary of the witness's evidence.
16 JUDGE MOLOTO: You may, ma'am.
17 MS. GOPALAN: Witness 76 describes the circumstances of the
18 abduction and mistreatment of one of her family members in early 1998 at
19 the hands of the KLA.
20 The witness states that sometime in the beginning of the war in
21 1998 a family member was abducted and taken to a prison in Jabllanice
22 which was run by the KLA. The witness believes the reason for this was
23 because Lahi Brahimaj thought this family member was a spy for the Serbs.
24 The witness's family member was detained in Jabllanice for two
25 months. The witness visited the family member at the prison in
1 Jabllanice once every three weeks.
2 The witness needed a travel permit from the KLA of the witness's
3 village to travel to Jabllanice.
4 The witness describes the prison in Jabllanice as being on the
5 right side of the road on the way to Gjakove after the mosque. The
6 prison compound had a wooden gate. The witness was not allowed to enter
7 the prison compound but had to wait for the guards to take the family
8 member out of the compound. The witness's family member was beaten badly
9 while in the prison.
10 After the family member was released from Jabllanice prison, he
11 told the witness that there were other prisoners who were held there. He
12 said that the guards would put him and other prisoners somewhere with
13 water up to the waist. He told the witness that he could hear the
14 screams of other detainees while being beaten.
15 According to the witness, Lahi Brahimaj was in charge of
16 Jabllanice, including the prison. The witness saw Lahi Brahimaj once
17 very close to the prison, when visiting the family member.
18 The witness's family member disappeared after the war and the
19 witness has not seen him since.
20 Your Honours, that's the end of my summary.
21 JUDGE MOLOTO: Thank you, madam.
22 MS. GOPALAN: Your Honours, with your permission, I would like to
23 show the witness a photograph. And if we could go to private session for
24 that, please.
25 JUDGE MOLOTO: May the Chamber please move into private session.
1 [Private session]
11 Pages 1371-1377 redacted. Private session.
12 [Open session]
13 THE REGISTRAR: Your Honours, we are back in open session. Thank
15 JUDGE MOLOTO: Thank you so much.
16 MR. HARVEY:
17 Q. Witness, (redacted) who disappeared, you went to Jabllanice in order
18 to see him; is that correct?
19 A. Yes.
20 Q. And --
21 A. After he disappeared, you mean?
22 Q. No, I don't mean after he disappeared.
23 A. Yes, yes.
24 Q. This was some time around the beginning of the war in 1998; is
25 that correct?
1 A. Yes, yes. It's correct.
2 Q. Do you recall whether that would have been around May of 1998?
3 A. To tell you the truth, I don't know, because there are so many
4 things that happened.
5 Q. When you first went to see (redacted) who disappeared, did you go on
6 your own, or did you with (redacted)? And please don't tell
7 us his name.
8 A. (redacted).
9 Q. And (redacted) also joined the KLA, didn't he?
10 A. At the time, yes.
11 Q. At which time? In 1998, yes?
12 A. 1999, yes.
13 Q. Well, do you remember whether it was 1998 or 1999, Witness?
14 A. I don't know. It was when we went towards -- for Albania. We
15 left for Albania. It was then. You mean (redacted)
17 MR. HARVEY: I think we better go into private session for a
18 moment so we can clarify that, please.
19 JUDGE MOLOTO: Thank you very much.
20 May the Chamber please move into private session.
21 [Private session]
11 Page 1380 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we are back in open session. Thank
10 JUDGE MOLOTO: Thank you so much.
11 Yes, Mr. Harvey.
12 MR. HARVEY:
13 Q. Who told you, Witness, that there was a place -- well, let me
14 rephrase this.
18 MR. HARVEY: And I think we better go into closed session,
19 private session.
20 MS. GOPALAN: Private session. Yes, that is what I was about to
21 say, Your Honours.
22 JUDGE MOLOTO: May the Chamber please move into private session.
23 [Private session]
11 Page 1382 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we are back in open session. Thank
5 JUDGE MOLOTO: Thank you, Mr. Registrar.
6 Yes, Mr. Harvey.
7 MR. HARVEY:
8 Q. And, Witness, you have said that you went to Jabllanice, you
9 think, perhaps four or five times. It's hard for you to remember; that's
11 A. That's correct. I went there when he was detained. But when he
12 went to the war, to the front, I didn't go there. He came to see me.
13 Because then he was free.
14 Q. And you were supporting the KLA yourself, weren't you, during the
16 A. Yes.
17 Q. You made money by baking bread for the KLA, didn't you?
18 A. Yes.
19 Q. And Lahi Brahimaj came to your house to give you flour, to bake,
20 didn't he?
21 A. Yes. He came often.
22 Q. You say he came often. How many times do you say he came?
24 MR. HARVEY: Sorry, we have another redaction, unfortunately.
25 MS. GOPALAN: Your Honours, may I suggest that this witness's
1 testimony is dealt with in private session.
2 JUDGE MOLOTO: Yes, Madam Gopalan. The Trial Chamber must try to
3 strike a balance between having a public hearing and preserving the
4 rights and security of witnesses. So we can't just sort of make a
5 blanket order. We've got to try and find a happy mean.
6 MR. HARVEY:
7 Q. Witness, may I --
8 JUDGE MOLOTO: May --
9 MR. HARVEY: Please, Your Honour. Yeah.
10 JUDGE MOLOTO: Shall we go back into private session. Or do you
11 just want to redact. Is that all?
12 MR. HARVEY: I just want to redact that.
13 Q. And say to the Witness, please, ma'am, do your best not to
14 mention any individual names. Because you have protected witness status
15 and by mentioning names, that may violate your status. I see you nodding
16 your head. I know you understand. Of course, it's difficult, we will
17 both try to avoid this happening again.
18 MS. GOPALAN: Your Honours, if I may, the witness, I think, has
19 difficulty understanding the distinction and being able to actively make
20 the distinction each time she is asked a question. And this is
21 particularly acute in relation to her family members, and I think the
22 compromise between the open hearing and -- and being in closed session
23 would be when the witness speaks about her family members which relate to
24 her identity, then I would suggest to Your Honours that that be heard in
25 private session so we do not have any further slip-ups.
1 JUDGE MOLOTO: When you say she has difficulty making a
2 distinction do you mean -- a distinction between whether we are in or out
3 of private session.
4 MS. GOPALAN: That. And also in terms of the information that
5 would identify her family members.
6 MR. HARVEY: Your Honours, I don't think it's appropriate for
7 Prosecution counsel to act as mind readers in court for the witness. I
8 will make more clear, with each question to the witness, whether I am
9 asking her a question in open session or in private session, and I think
10 that is appropriate. But if we restrict the entire proceedings to only
11 mentioning -- only being in private session when speaking about a member
12 of her family then, of course, the entire proceedings will be in private.
13 So I will work harder and further with this witness to make sure
14 that we can have as much of this in public as possible, because that is
15 in the public interest and in the Tribunal's interest.
16 JUDGE MOLOTO: May I further suggest to you, Mr. Harvey, because
17 you can read on the screen whether we are in private session or open
18 session, so in addition to saying to the witness, We are in private
19 session, say to the witness as you ask the question, Please, in your
20 answer don't give me the name or, if -- if there's any identifying
21 feature just say, Don't --
22 If you go on button that says "video" you will be able to see
23 whether we are in or out of private session. There will be a "PS" when
24 we are in private session, "CS" when we are in closed session.
25 I see you trying to look for that.
1 MR. HARVEY: I have a very fine view of myself and yourself on
2 the video, but I'm not seeing the transcript.
3 JUDGE MOLOTO: Because we are in open session. That's why you
4 don't have a "PS" there. But it will come up in red when we are. Over
5 that ICTY logo.
6 MR. HARVEY: I follow you. I'll arrange the rest of my screens
8 Unfortunately, my other screen does not show anything, since page
9 17, line 4, of this morning. So I'm not getting any help from that at
11 JUDGE MOLOTO: Not on that screen where you are looking at the
12 transcript. On the other screen. Where you look at your exhibits.
13 Mr. Registrar, we are redacting that little thing?
14 [Trial Chamber confers]
15 MR. HARVEY: My other screen has now unfrozen, thanks to
16 Mr. Mair's kind assistance. So let's proceed as we can here. Thank you.
17 JUDGE MOLOTO: Thank you. Thank you very much, Mr. Harvey.
18 MR. HARVEY:
19 Q. So we are now, I believe --
20 JUDGE MOLOTO: We are at the time where you asked a question and
21 the witness (redacted) who disappeared and you asked for a
22 redaction and then this whole little discussion came about.
23 So if can you remember the question you had asked at that time.
24 MR. HARVEY: Just waiting for... okay.
25 Q. Witness, I believe we are -- yes.
1 MR. HARVEY: May we now go into open session, please.
2 JUDGE MOLOTO: May the Chamber please move into open session.
3 You were talking at the time when Mr. Brahimaj was bringing lots
4 of flour.
5 We are in open session? Okay. Thank you very much, Mr. Harvey.
6 MR. HARVEY: Thank you.
7 Q. Witness, you said that Lahi Brahimaj came to bring you flour.
8 Did over people with the name of Brahimaj also come to your house on a
9 number of occasions?
10 A. Yes.
11 Q. Do you remember who else came?
12 A. Yes. I remember, but he is dead now, and I find it difficult to
13 mention him by name.
14 Q. Well, I don't need to trouble you with that further.
15 Your evidence is that (redacted) who joined the KLA was
16 wounded at one stage; is that correct?
17 A. Yes, yes.
18 Q. And do you remember how long he had been gone from your home by
19 the time he was wounded? Was it a matter of two months, three months,
20 one month?
21 A. I don't know. He was at war. I couldn't count the days.
22 Q. And when he was wounded, he was taken good care of by the KLA,
23 was he not?
24 A. Yes.
25 Q. Do you remember where he was treated?
1 A. In Jabllanice.
2 Q. And in what kind of a place was he treated there?
3 A. He was given the first aid in Irzniq, and then he stayed in
5 Q. So in Irzniq, there was a hospital of some sort; is that correct?
6 A. Yes. This was what I was told. I wasn't there myself.
7 Q. Did you go to Jabllanice to see him while he was recovering
9 A. They informed me that he was wounded, and I went to visit him.
10 Q. And the place that you visited him in was not a hospital, was it?
11 A. It was a room.
12 Q. A room in someone's house; yes?
13 A. Yes.
14 Q. I ask you this, Witness, because in the statement which you gave
15 to the Prosecution, it says in that statement that there was a hospital
16 in Jabllanice where you visited him. But that's not correct, is it?
17 MR. HARVEY: Looking at paragraph 16, Your Honours.
18 Q. That's right, isn't it? There wasn't a hospital in Jabllanice,
19 was there?
20 A. The wounded stayed there. But they took out the bullet in
23 MR. HARVEY: I'm so sorry. Could we have a redaction, please.
24 JUDGE MOLOTO: Yes, Madam Gopalan.
25 MS. GOPALAN: Your Honours, would it be possible to proceed in
1 private session when we speak about family members, and, at the end of
2 the witness's evidence, we review the whole transcript and make
3 appropriate redactions so that it may be then opened up to the public.
4 MR. HARVEY: Your Honours, I certainly oppose that course of
5 action. I do apologise for that last slip of the tongue.
6 JUDGE MOLOTO: Sure. And my problem, Madam Gopalan, is that it
7 does as seem as the entire testimony the entire cross-examination is on
8 family members. And otherwise it means that the entire testimony is
9 going to be in private session.
10 MS. GOPALAN: But only temporarily, Your Honours. Once a review
11 is done, appropriate portions can then be released to the public. If
12 that is not done, we -- we see that on a number of occasions there have
13 been slip-ups that require redactions and I think the safer course of
14 action would be for it to be heard in private session and the concern
15 that you had about the open trial could be dealt with later on. Because,
16 in any event, if the material is confidential, it will have to be heard
17 in private session anyway.
18 MR. HARVEY: Your Honours, Ms. Gopalan clearly completely
19 misperceives half of the purpose of having open sessions. This trial is
20 followed day and daily on television in Kosovo. This witness herself has
21 watched this trial on television in Kosovo. The primary means for the
22 people in the country that are most affected by the testimony that is
23 being given, the primary means for them to know what is being said about
24 these three accused and about their country is by public session, on
25 television, not by reading transcripts that may be redacted or
1 de-redacted at a later stage.
2 And so the suggestion that we do this entire thing in private and
3 then go back and open up the transcript at some later stage does not meet
4 the concerns of a public trial in my submission.
5 MS. GOPALAN: Your Honours --
6 JUDGE MOLOTO: May I suggest to you, Madam Gopalan and to
7 everybody, when your opposite member is speaking, please, to take your
8 seat. We don't have a jury; we've got a different ethic here.
9 Are you done?
10 You wanted to say something, Madam Gopalan.
11 MS. GOPALAN: Yes, Your Honours. I wanted to add that is
12 precisely because of the reasons that Mr. Harvey identified, that the
13 trial is being followed closely that we need to be acutely aware of any
14 security concerns and the need to protect the witness. The fact that it
15 is being followed so closely is actually a point in favour of dealing
16 with this in private session because the ultimate remedy is still
17 available, that it is available openly but only at a later stage when we
18 are certain that no security concerns have been breached.
19 JUDGE MOLOTO: But, Madam Gopalan, there is a 30-minute delay in
20 the beaming of the transcript -- the -- what is the English word?
21 Broadcasting of proceedings here, isn't there? There is a 30-minute
22 delay in the broadcast so if we pick up that mistake immediately and
23 redact it, by the time this is broadcast, that problem has been solved.
24 MS. GOPALAN: Your Honours, I was wondering about the individuals
25 sitting in the public gallery.
1 JUDGE MOLOTO: Well, we cannot help those.
2 [Trial Chamber confers]
3 JUDGE MOLOTO: May the Chamber please move into private session.
4 [Private session]
11 Pages 1392-1394 redacted. Private session.
14 [Open session]
15 THE REGISTRAR: Your Honours, we're in open session. Thank you.
16 JUDGE MOLOTO: Thank you very much.
17 You may proceed, Mr. Guy-Smith.
18 MR. GUY-SMITH: Thank you very much.
19 I note we're almost close to a break as well, and I -- perhaps,
20 we can formulate more cogent responses and come back at that time and
21 discuss this more fully.
22 The issue that is presently at hand that we have been discussing
23 is the question of whether or not we're going to be in private or public
24 session and the importance of the concerns that exist with regard to
25 having a public trial as well as concerns that exist in terms of the
1 issue of the protection of certain witnesses. And I think this is a
2 point that is of great moment to all of us and something that I
3 appreciate that the Chamber is fully not uncognisant of but is troubled
4 by - and I don't mean troubled by in the sense of anything other than
5 it's something of importance to us all with regard to the idea that these
6 trials should be fully apparent, fully open, and fully available to the
7 public with all of the rights of the accused being taken into account as
8 well as the rights of the victim.
9 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
10 You -- yes ma'am.
11 MS. GOPALAN: I would just like to add in response to Mr. Harvey
12 and Mr. Gregor Guy-Smith, the Prosecution maintains its position that it
13 has stated earlier on, and we are mindful of the particular security
14 concerns that this witness has, that the Chamber is alerted to, and
15 that's the basis for our position. And my understanding, Your Honours,
16 was in any event that you have already ruled. But if you're minded to
17 reconsider, this is our position.
18 JUDGE MOLOTO: Thank you very much, Madam Gopalan.
19 Mr. Harvey did ask that we reconsider. And Mr. Guy-Smith
20 suggested that we take a break and come back. So the debate is not
22 So may we take a break and come back at half past 12.00.
23 But before we do that, may we move into closed session.
24 [Closed session]
9 [Open session]
10 THE REGISTRAR: Your Honours, we are back in open session. Thank
12 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
13 We'll take a break and come back at half past 12.00.
14 Court adjourned.
15 --- Recess taken at 12.02 p.m.
16 --- On resuming at 12.34 p.m.
17 JUDGE MOLOTO: I thought it was Mr. Guy-Smith who suggested that
18 we take the break and continue when we come back, leaving the Chamber
19 with the impression that he wasn't done yet. If he is, however, done,
20 you may stand up, Mr. Harvey.
21 I see he doesn't seem to take -- oh.
22 MR. GUY-SMITH: I will defer to Mr. Harvey. I -- I remain
23 terribly concerned about the issue of public trials but based on the
24 representations made by Mr. Harvey, I'll defer to him since he's in the
25 driver's seat right now.
1 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
2 Mr. Harvey.
3 MR. HARVEY: Your Honours, I think I may be able to assist
4 everybody if I indicate that that break has given me an opportunity to
5 reconsider the approach that I was originally planning to take with this
6 witness. And, as a result of that, there -- I have been able to identify
7 a number of issues which do not refer to any family members, and which I
8 can therefore deal with perfectly competently and happily in open
9 session. And as soon as I come to any issue of -- any of the few
10 remaining areas concerning familiar members, I will ask to go into
11 private session.
12 JUDGE MOLOTO: The Chamber is very grateful to you for that,
13 Mr. Harvey.
14 And at some stage, when we don't have a witness on the stage, the
15 Chamber would like, by way of housekeeping, to have a discussion with the
16 parties on this issue because there are other factors that have been
17 brought to the attention of the Chamber by the Court Officers and CMSS
18 which the Chamber would like to share with the parties.
19 MR. HARVEY: We remain in your hands, of course.
20 JUDGE MOLOTO: Thank you so much.
21 We are in open session. May the Chamber please move into closed
23 [Closed session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we are back in open session. Thank
22 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
23 Yes, Mr. Harvey.
24 MR. HARVEY: Thank you, Your Honours.
25 Q. Madam Witness, just one matter from before the break. You said
1 that Lahi had brought flour and other matters. It was, in fact, common
2 practice, wasn't it, by the KLA, during the war that they would bring
3 flour, oil, and other food they would distribute to the families of KLA
5 A. Yes. (redacted) was -- took part in the war, and nobody else could
6 bring me those things.
7 Q. And the KLA provided that kind of assistance to many families,
8 particularly poor families, who couldn't afford these things for
10 A. Yes.
11 Q. Thank you. I'd like to ask you some questions now about how you
12 came to make your statement - are you okay with those headphones? Yes? -
13 about --
14 A. Yes, yes, okay.
15 Q. -- how you came to make your statement in September of 2010.
16 Do you recall how you got to the EULEX headquarters at Camp Bravo
17 when you were -- went to make your statement?
18 A. Yes, I did go there.
19 Q. How did you get there?
20 A. By bus.
21 Q. And who contacted you to tell you where you had to go?
22 A. I went there by myself. I couldn't find the place, and then I
23 had to ask people, and then I went to EULEX.
24 Q. And had anybody contacted you before you went to EULEX or did you
25 go without anyone asking you to?
1 A. I also went to our police station. I went to EULEX in Gjakove.
2 I went everywhere. Nobody paid attention to me. And that's why I went
3 to EULEX.
4 Q. And was that for the first time you did that in September of
6 A. I think so.
7 Q. And did they take a statement from you all in the one day? Or
8 did they tell you to come back another day? How was that done?
9 A. I think it was within one day; however, I'm not sure about it.
10 Q. Had you heard information somewhere, on the television, or radio,
11 or somehow, that EULEX were looking for people to give them information?
12 A. I knew it by myself.
13 Q. And what did you hope to achieve by giving them a statement?
14 A. I went there to find out about (redacted).
15 Q. Very well. Let me just ask you this: Do you go with this as a
16 general statement, madam, that during a war, there is propaganda on all
18 Do you understand what I mean by "propaganda"?
19 A. Yes. Yes, I understand.
20 Q. And do you agree that, during a war, there is propaganda made by
21 all sides involved?
22 A. Yes.
23 Q. And that, during a war, you hear all kinds of rumours that are
24 spread? I --
25 I'm sorry, I'm not sure if you answered my question or not.
1 Do you agree that all kinds of rumours get [Microphone not
3 A. What answer can I give?
4 Q. Well, you can answer this. Did you hear all sorts of rumours
5 during the war?
6 A. About whom?
7 Q. Did you hear rumours, for instance, about Jabllanice?
8 A. No, I didn't. I was not interested to listen to those things
9 during the war.
10 Q. Did you hear -- let me rephrase that.
11 MR. HARVEY: Can we go into private session for a moment, please.
12 JUDGE MOLOTO: May the Chamber please move into private session.
13 [Private session]
11 Pages 1403-1426 redacted. Private session.
2 [Closed session]
11 Page 1428 redacted. Closed session.
16 [Open session]
17 THE REGISTRAR: Your Honours, we are back in open session. Thank
19 JUDGE MOLOTO: Thank you so much.
20 The matter stands adjourn till 9.00 tomorrow morning, same
22 Court adjourned.
23 --- Whereupon the hearing adjourned at 1.50 p.m.,
24 to be reconvened on Thursday, the 29th day of
25 September, 2011, at 9.00 a.m.