1 Friday, 4 November 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.31 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
6 courtroom. [Microphone not activated] Mr. Registrar, call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj and
9 Lahi Brahimaj.
10 JUDGE MOLOTO: [Microphone not activated] Could we have the
11 appearances for the day, starting with the Prosecution.
12 MR. ROGERS: Yes, good morning, Your Honours. Paul Rogers for
13 the Prosecution, together with Ms. Daniela Kravetz, and our case manager,
14 Ms. Line Pedersen. And in case you were wondering who the gentleman
15 that's sitting or appears to be sitting with the OTP, he is not. It's
16 Mr. Haynes who is here to represent the interests of the witness.
17 JUDGE MOLOTO: Thank you so very much, Mr. Rogers. Thank you
18 very much for being here, Mr. Haynes.
19 MR. HAYNES: My pleasure, Your Honour.
20 JUDGE MOLOTO: Thank you so much. Could we have representations
21 for the Defence, please, starting with Mr. Haradinaj.
22 MR. DIXON: Rodney Dixon, Your Honour, on behalf of
23 Mr. Haradinaj, together with Annie O'Reilly and Andrew Strong.
24 JUDGE MOLOTO: Thank you very much, Mr. Dixon. And for
25 Mr. Balaj.
1 MR. GUY-SMITH: Gregor Guy-Smith appearing on behalf of
2 Mr. Balaj, together with Ms. Colleen Rohan and Mr. Chad Mair.
3 JUDGE MOLOTO: Thank you very much. And for Mr. Harvey.
4 MR. HARVEY: For Mr. Brahimaj, Your Honour --
5 JUDGE MOLOTO: My apologies, Mr. Harvey.
6 MR. HARVEY: It's an easy mistake to make. For Mr. Brahimaj,
7 Richard Harvey assisted by Mr. Luke Boenisch, Ms. Rudina Jasini, and
8 today also by Ms. Sylvie Kinabo. Thank you.
9 JUDGE MOLOTO: Thank you very much, Mr. Harvey. Let me just
10 start off by apologising for the late start for reasons beyond our
11 control. And I hope we have not -- I hope we are forgiven for the
13 May -- before we go into private session, Mr. Haynes, are you
14 aware enough with what you are going to be helping us with today?
15 MR. HAYNES: Your Honour, yes. I was contacted yesterday evening
16 by the Registry. I was in touch with the witness by telephone. He
17 requested to see me personally. I saw him yesterday evening with the
18 assistance of an Albanian interpreter. I've been provided with further
19 detailed material this morning sufficient for me, I believe, to be --
20 JUDGE MOLOTO: To be able to help.
21 MR. HAYNES: -- to advise him in due course.
22 JUDGE MOLOTO: Thank you very much. I suspect it's going to be
23 convenient that, when he comes in, you sit next to him there so that you
24 are able to execute your duties towards him as conveniently and what have
1 MR. HAYNES: Yes, I was simply waiting for Your Honours'
2 direction as to that.
3 JUDGE MOLOTO: Thank you very much Mr. Haynes.
4 May the Chamber please move into closed session.
5 [Closed session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we are in open session. Thank you.
17 JUDGE MOLOTO: Thank you very much.
18 Now, Mr. Witness, good morning to you once again. I believe you
19 were able to meet with counsel yesterday to deal with the issues that
20 were raised in the evening. Mr. Haynes has already given us a brief
21 report and we are grateful to him to be able to assist you. He is going
22 to be sitting next to you there at -- I'm happy that all that went on
23 okay. Just as usual, just to remind you, you are still bound by the
24 declaration you made at the beginning of your testimony to tell the
25 truth, the whole truth, and nothing else but the truth. Okay? Thank you
1 so much.
2 Mr. Haynes, would you like to ...
3 Would you have loved a little desk in front of you or are you
4 okay like that, Mr. Haynes?
5 MR. HAYNES: I'm fine, thank you very much.
6 JUDGE MOLOTO: Thank you so much, Mr. Haynes. Sorry we don't
7 have the resources.
8 Mr. Harvey.
9 MR. HARVEY: Thank you, Your Honours.
10 WITNESS: 75 [Resumed]
11 [Witness answered through interpreter]
12 Cross-examination by Mr. Harvey: [Continued]
13 Q. Mr. Witness, you were aware that there was a trial previously
14 involving these three same accused, weren't you?
15 A. I am sorry, I didn't understand your question. What are you
16 asking me about?
17 Q. You know that there was another trial before, during 2007,
18 involving Mr. Haradinaj, Mr. Balaj, and Mr. Brahimaj here at the Tribunal
19 in The Hague? You know about that, don't you?
20 A. Yes.
21 Q. And did you follow some of the proceedings of that trial at the
23 A. No, no.
24 Q. Did you learn about that trial at any stage?
25 A. No, I just heard that there was a trial. That's it.
1 Q. Did you -- let me rephrase that. When you testified in
2 immigration proceedings in February of 2008, you swore to tell the whole
3 truth, didn't you?
4 A. Yes.
5 Q. In this case here, you have told the Judges that (redacted) was
6 arrested by the KLA; correct?
7 A. Correct.
8 Q. When you testified in 2008 in immigration proceedings, you never
9 mentioned anything about (redacted) being arrested by the KLA, did you?
10 A. This question seems rather complicated to me, I am afraid.
11 Q. Witness, when you testified in immigration proceedings, you never
12 mentioned that (redacted) had been arrested by the KLA? Do you
13 understand that question? Yes or no, do you understand that question?
14 A. I can't hear very well the translation.
15 Q. Let me try again. When you testified in immigration proceedings
16 in 2008, you never mentioned that (redacted) had been arrested by the
17 KLA. Now, do you understand that question?
18 A. Yes, I understand the question.
19 Q. Is it correct that you did not mention that (redacted) had been
20 arrested by the KLA as you now tell this Court?
21 A. I do not wish to answer that question, Your Honour, if I may.
22 MR. HARVEY: Your Honours, I would ask that the witness be
23 directed to answer the question or at least to give an explanation as to
24 why he doesn't wish to answer it, which he has not given.
25 JUDGE MOLOTO: Your request is refused, Mr. Harvey.
1 MR. HARVEY:
2 Q. When you testified in immigration proceedings you never mentioned
3 the name of Lahi Brahimaj, did you?
4 A. No, I did not mention the name.
5 Q. You never mentioned the name of Ramush Haradinaj, did you?
6 A. I don't remember. I don't believe I did.
7 Q. And for the sake of completeness, you never mentioned the name of
8 Idriz Balaj, did you?
9 A. No.
10 Q. You never mentioned the name of Naser Brahimaj?
11 A. No.
12 Q. You never even mentioned Jabllanice, did you?
13 MR. ROGERS: Your Honours, I'm not sure what the purpose of this
14 line of questioning is. Is Mr. Harvey suggesting that he should -- is
15 Mr. Harvey suggesting that he should have mentioned these things.
16 MR. GUY-SMITH: Excuse me, I -- excuse me, excuse me. If
17 Mr. Rogers has a valid objection he can make it. This is not an
18 appropriate time for a speaking objection to be made given the
19 sensitivity of the nature of the proceedings before us.
20 MR. ROGERS: Your Honour, forgive me, it is.
21 MR. HARVEY: I endorse what Mr. Guy-Smith has said --
22 JUDGE MOLOTO: Can I intervene here.
23 MR. HARVEY: Of course, Your Honour.
24 JUDGE MOLOTO: We can't have two counsel standing and speaking
25 all at the same time, let alone three.
1 MR. HARVEY: Your Honour, the --
2 JUDGE MOLOTO: I did say, as recently as yesterday, when one
3 counsel stands up, other counsels sit down. Please take your seat.
4 MR. HARVEY: Your Honour, I don't want to argue with you --
5 JUDGE MOLOTO: Please take your seat, Mr. Harvey. Make your
6 objection, Mr. Rogers.
7 MR. ROGERS: Yes, relevance is the objection. What is the
8 relevance of this line of questioning.
9 JUDGE MOLOTO: Thank you, Mr. Rogers. Mr. Harvey, what is the
11 MR. HARVEY: Your Honour, first of all, my sincere apologies to
12 the Court.
13 JUDGE MOLOTO: Thank you for the apology.
14 MR. HARVEY: I did not wish anything to happen that might appear
15 to coach the witness in front of the Court, that was the reason I stood
16 my ground, but I apologise. Your Honours, I would ask you to let me take
17 my course and I think the relevance will become very clear within one or
18 two questions. Because I don't wish to say anything to coach the witness
20 JUDGE MOLOTO: Understandable, Mr. Harvey. However, if relevance
21 must be seen ex post facto, then the objection becomes undermined because
22 if then it doesn't become clear ex post facto, then you have got what you
23 wanted but the objection has now not been adhered to. So I am afraid you
24 have to show the relevance before you carry on.
25 MR. HARVEY: The relevance is fundamentally credibility,
1 Your Honour.
2 MR. ROGERS: Your Honour, of course that begs the question of on
3 what basis Mr. Harvey is suggesting this material should have been
4 mentioned within those immigration proceedings. If the issue is
5 credibility and it's suggested that he should have mention these things,
6 on what basis is he suggesting he should have within the context of the
7 asylum application that was being made.
8 MR. HARVEY: Your Honour, I think that's a matter for argument
9 and it's not a question of whether or not I should be permitted to
10 question this witness specifically given that he testified to you that he
11 swore to tell the whole truth to the immigration judges.
12 MR. ROGERS: Yes, but the truth -- forgive me, Your Honour.
13 JUDGE MOLOTO: Sorry, we are not going to have a ping-pong game
14 now. I'm going to rule on the objection. Upheld.
15 MR. HARVEY: Your Honour, so that I understand, are you upholding
16 the objection to this line of questioning?
17 JUDGE MOLOTO: Yes.
18 MR. HARVEY:
19 Q. Witness, you knew when you testified in immigration proceedings
20 that it was important to tell the judge of any reason that you had to
21 fear being sent back to Kosovo, didn't you?
22 A. Yes.
23 Q. You knew that it was important to tell the immigration judge
24 about anything that had happened to your family members that might put
25 you at risk if you were sent back to Kosovo, didn't you?
1 A. I don't want to answer the question, if I may, Your Honour.
2 MR. HARVEY: Again, Your Honours, I ask that the witness be
3 directed to answer the question or to explain his reason for not wishing
4 to answer it.
5 JUDGE MOLOTO: Once again [Microphone not activated] Mr. Harvey.
6 MR. HARVEY: Your microphone.
7 JUDGE MOLOTO: Once again your request is being refused,
8 Mr. Harvey.
9 MR. GUY-SMITH: Excuse me, Your Honour, if I might. I understand
10 the Court's ruling, but for purposes of clarity, the answer given, "I
11 don't want to answer the question, if I may, Your Honour," is not a
12 legally cognisable reason not to answer a question. I think there is an
13 implicit understanding here as to why the witness is not answering these
14 questions. However, at a later point in time if this matter comes up for
15 argument, I don't believe that it's appropriate for us to be left with
16 this vague answer because it's subject to interpretation.
17 I believe that the basis upon which the witness is making this
18 assertion is because he has a concern about self-incrimination. That may
19 be because of the advice that he was receiving from counsel or maybe
20 because of his own self-held views. However, whatever the reason may be,
21 I think it's important for purposes of the record being clear on this
22 issue that we know the reason and the reason is a reason that has a basis
23 in law so that if there's ever any question about the Court's ruling, it
24 will be self-evident as to why the Court made the ruling that it made.
25 JUDGE MOLOTO: Thank you very much for providing us with the
1 reasoning in that question, sir, and therefore there's no need for us to
2 ask the witness to give us the reason.
3 Mr. Harvey.
4 MR. HARVEY:
5 Q. Witness, are you refusing to answer the question because you
6 believe that it might incriminate you to do so?
7 A. I didn't get the translation very well. Can you please repeat
9 Q. Witness, are you refusing to answer the question because you
10 believe that it might incriminate you to do so?
11 A. I don't like to -- I don't wish to answer this question.
12 Q. Witness, why don't you wish to answer the question?
13 A. I don't want to.
14 Q. Is it because you are afraid that using -- sorry, afraid that if
15 you answer the question it may be used against you?
16 MR. ROGERS: Your Honour, he has already provided his answers
17 several times to this line of questioning. And it's been asked and it's
18 been answered, he says he doesn't want to and he has explained that.
19 MR. HARVEY: Your Honours, the witness may not want to be here at
20 all but that's not, in my submission, a relevant matter. The witness is
21 perfectly able to answer yes or no.
22 JUDGE MOLOTO: He hasn't said he doesn't want to be here.
23 MR. HARVEY: No, he hasn't. I'm just saying that even if he were
24 to say that, that would be completely immaterial. What is -- it's not
25 sufficient, in my submission, for a witness to simply say "I don't want
1 to answer the question." He has to give a reason for not wishing to
2 answer the question.
3 JUDGE MOLOTO: But what if he doesn't want to give a reason?
4 Because, you know, then you go into a self-perpetuating line of
6 MR. HARVEY: I think it may be self-evident to everybody in the
7 courtroom, but normally speaking, where a witness has concerns that cause
8 him to refuse to answer a question in court, then, normally speaking, in
9 my experience, it is at least put on the record, This is why I do not
10 wish to answer.
11 JUDGE MOLOTO: That is if the witness does decide to give a
12 reason why he doesn't want to answer. But if he doesn't give the reason,
13 then you don't have it.
14 MR. HARVEY: Well, then he comes pretty close to contempt at that
15 point, in my submission. If he's refusing to give a reason for refusing
16 to answer a question, that, in my submission, is contempt in the face of
17 the Court.
18 JUDGE MOLOTO: That's your interpretation.
19 MR. GUY-SMITH: Your Honour, if I might, pursuant to Rule 90(E),
20 I think that is where Mr. Harvey is finding the basis for his concern is
21 also, I think, the law as it stands at least at the Tribunal. I would
22 agree with Mr. Harvey that if a witness tells the Court that they refuse
23 to answer a question, and they don't have a legally cognisable basis for
24 answering the question, and the Court directs them to answer the
25 question, and they do not, they would be in contempt and the Court could
1 exercise whatever powers it deems appropriate. There is, under the rule,
2 a recognition that testimony can be compelled. When the Chamber makes a
3 determination that testimony should be compelled, there is a proviso that
4 that testimony cannot be used as evidence in subsequent prosecution
5 against the witness for any offence other than precisely the situation
6 that we are dealing with here, which is perjury or false testimony.
7 And the answer that this gentleman is giving, if Mr. Rogers
8 agrees or if Mr. Haynes in his capacity representing the witness is
9 willing to tell us what advice he is giving the witness regarding this
10 matter, specifically on the issue of self-incrimination, then the record
11 is clear and there's no doubt or any dispute as to why his motivations
12 are that he does not want to answer the question or he does not want to
13 give a reason as to why he wants to answer the question because he is
14 concerned about incriminating himself.
15 There's nothing wrong with the gentleman saying that and the
16 privilege will be -- will, I'm sure, be respected by the Chamber and by
17 the parties. But in the absence of that being on the record, there's a
18 lack of clarity.
19 And I don't want to be in a position, to be very honest with you,
20 Your Honour, at a later point in time when the Prosecution stands up and
21 says that there's some ambiguity with regard to why this gentleman did
22 not answer the questions that were posed. Although all of us know that
23 the reason is because they tend to incriminate him.
24 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
25 Mr. Harvey.
1 MR. HARVEY: Your Honour, Mr. Guy-Smith has said more eloquently
2 than I exactly what I would have submitted. I'm not going to repeat it.
3 I endorse everything he said.
4 JUDGE MOLOTO: And so what are you anticipating? I thought you
5 were going to carry on with your cross-examination.
6 MR. HARVEY: I was anticipating that Your Honour might direct the
7 witness to answer the question.
8 JUDGE MOLOTO: Well, the Chamber has said it is not going to
9 direct the witness to answer the question, sir. I've told you this
10 before, didn't I?
11 MR. HARVEY: Very well.
12 Q. Witness, during immigration proceedings you told the immigration
13 judge that two men, Geg and Sokol, would travel the whole country to find
14 you, the whole country of Kosovo. Do you remember saying that?
15 MR. ROGERS: Could we have a reference, please.
16 JUDGE MOLOTO: Reference, Mr. Harvey.
17 MR. HARVEY: Yes, indeed. It is 3D230311. Sorry, can we start
18 with 3D230259. I think that's how we have to do it and then go to 0311.
19 JUDGE DELVOIE: Mr. Harvey, are you calling the document on the
20 screen? Can we have that in open session?
21 MR. ROGERS: I was just about to say the same thing, Your Honour.
22 MR. HARVEY: I don't need it on the screen. I was just trying to
23 help Mr. Rogers with that if he wants to get it up on his own screen.
24 MR. ROGERS: I am just looking at it and I can't see quite where
25 the question comes from in the form that it does, but maybe Mr. Harvey
1 can point it out to me at which line. But if we are going to refer to
2 the transcript, if we are going to refer to this transcript, then I think
3 that we need to be in private session because of the confidentiality
4 attaching to it.
5 JUDGE MOLOTO: Are you asking for us to move into private
6 session, sir?
7 MR. ROGERS: I don't know where Mr. Harvey is going with his
8 cross-examination, but if he intends to refer to the quote or the
9 information directly from the transcript, we need to be in private
10 session. He may choose not to follow the question, I don't know.
11 JUDGE MOLOTO: Mr. Harvey.
12 MR. HARVEY: Your Honours, I don't think it's necessary for us to
13 go into private session. I am having a slight problem locating --
14 marrying up my page numbers. Perhaps Mr. Rogers could help me. At the
15 bottom of each of the transcript pages is a number. I'm looking at the
16 page that is numbered 62 at the bottom.
17 MR. ROGERS: The 0311 reference is to page 69.
18 MR. HARVEY: Ah. Thank you very much for that. I seem to have
19 misplaced one --
20 MR. ROGERS: 0304 is the page 62.
21 MR. HARVEY: I'm grateful to Mr. Rogers.
9 [Private session]
11 Pages 1823-1829 redacted. Private session.
16 [Closed session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we are in open session. Thank you.
21 JUDGE MOLOTO: Thank you very much. Take a break and come back
22 at 11.00 -- quarter to 11.00.
23 --- Recess taken at 10.23 a.m.
24 --- On resuming at 10.46 a.m.
25 JUDGE MOLOTO: May the Chamber please move into closed session.
1 [Closed session]
22 [Open session]
23 THE REGISTRAR: Your Honours, we are in open session. Thank you.
24 JUDGE MOLOTO: Thank you very much. I see you are on your feet,
25 Mr. Guy-Smith.
1 MR. GUY-SMITH: Yes, Your Honour. Yes, I am, Your Honour. With
2 regard to the last statement concerning speaking in English, I'm somewhat
3 confused. Does this mean that there are aspects of an answer that have
4 been given that have not become part of the record by virtue of the
5 language in which the witness is speaking?
6 JUDGE MOLOTO: Yeah, very little phrases, maybe one or twice
7 only --
8 MR. GUY-SMITH: Okay.
9 JUDGE MOLOTO: -- where the witness said either "yes" or "I
10 understand" or something like that.
11 MR. GUY-SMITH: Okay. But there's somewhere to capture at least
12 for purposes of the transcript that the witness did that, I take it? I'm
13 asking the question.
14 JUDGE MOLOTO: Well, yeah, can we capture it here now?
15 MR. GUY-SMITH: I just don't know the technicality of it --
16 JUDGE MOLOTO: This kind of speaking in English happened
17 yesterday actually.
18 MR. GUY-SMITH: Fine, okay.
19 JUDGE MOLOTO: It happened yesterday. Not today.
20 MR. GUY-SMITH: Fine.
21 [Trial Chamber confers]
22 JUDGE MOLOTO: Judge Delvoie confirms that it was on the
24 MR. GUY-SMITH: Thank you very much.
25 JUDGE MOLOTO: Thank you so much, sir.
1 Mr. Harvey.
2 MR. HARVEY: Thank you, Your Honours.
3 Q. Witness, you based your claim for asylum on two things, didn't
4 you? One, that you were persecuted for your support of the
5 Democratic Party, that's one thing. Would you confirm that that was part
6 of the basis of your claim for asylum?
7 A. I can't remember.
8 Q. Witness, you remember perfectly well, don't you, that you told
9 the immigration judge that you were a member of the Democratic Party?
10 You told him that, didn't you?
11 A. Maybe I said that but I can't remember.
12 Q. And you told the immigration judge that two men had been paid to
13 go after you, to do you harm or to kill you? You told him that, didn't
15 A. I can't remember saying that.
16 Q. Witness, did you tell the immigration judge about Geg Lleshi and
17 Sokol? You remember that, don't you?
18 A. Yes.
19 Q. And you told the judge that they had been paid to come after you,
20 didn't you?
21 A. Yes.
22 Q. And you told the judge that they had been paid by a Serb former
23 policeman, didn't you?
24 A. I can't remember.
25 Q. You told the immigration judge that a man called Milutin Pasovic
1 had paid them, didn't you?
2 A. Maybe I said that but I don't remember for the moment.
3 Q. You confirmed that yesterday, didn't you, Witness? You don't
4 remember what you said yesterday?
5 JUDGE MOLOTO: Would that then be -- would that then be asked and
7 MR. HARVEY: I'm giving the witness an opportunity, Your Honour,
8 simply to say whether he even stands by the testimony he gave yesterday.
10 MR. ROGERS: Perhaps we could have a quote, please, a transcript
11 line and reference for the testimony. I think it's important because
12 it's a question of whether it was said to the judge or not and I'm -- I
13 can't remember now whether it was in relation to a different issue or
14 whether it was in relation to what was said to the judge that is he is
15 attempted to be impeached by.
16 MR. HARVEY: I will provide that reference as soon as I can check
17 it myself. I'm going by my memory at the moment rather than going by a
18 transcript that I didn't have access to this morning.
19 JUDGE MOLOTO: Okay. Until you have checked can you move on to
20 the next point.
21 MR. HARVEY: Of course. Thank you, Your Honour.
22 Q. Do you recall mentioning the man Milutin Pasovic in your
23 testimony to the immigration judge?
24 A. Yes, I mentioned him.
25 Q. And you told the judge, the immigration judge, that that man had
1 paid two Albanians to come after you, didn't you?
2 A. I can't remember.
3 Q. It would have been a ridiculous lie, wouldn't it, Witness?
4 A. Can I have the question again, please. I don't think I
5 understood it correctly.
6 Q. Well, let's not worry about the question. Let's go to the
7 transcript of your testimony.
8 MR. HARVEY: And for this purpose we will need to go into private
10 JUDGE MOLOTO: May the Chamber please move into private session.
11 And while I'm speaking, Mr. Harvey, yesterday you indicated that you had
12 20 minutes left to finish. How much more do you have?
13 [Private session]
11 Pages 1837-1859 redacted. Private session.
10 [Closed session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we are in open session. Thank you.
21 JUDGE MOLOTO: Thank you, Mr. Registrar.
22 We'll take a break and come back at half past 12.00. Court
24 --- Recess taken at 12.03 p.m.
25 --- On resuming at 12.36 p.m.
1 JUDGE MOLOTO: May the Chamber please move into closed session.
2 [Closed session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we are in open session. Thank you.
18 JUDGE MOLOTO: Thank you very much.
19 Yes, Mr. Guy-Smith.
20 MR. GUY-SMITH: Thank you, Your Honour.
21 Could we move in private session, please.
22 JUDGE MOLOTO: May the Chamber please move into private session.
23 [Private session]
11 Pages 1862-1864 redacted. Private session.
3 [Closed session]
13 [Open session]
14 THE REGISTRAR: Your Honours, we are in open session. Thank you.
15 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
16 Mr. Rogers.
17 MR. ROGERS: Your Honour, that concludes the evidence that we
18 have available for this session. And I would invite Your Honours to
19 adjourn to the next session, although I think Mr. Harvey has something he
20 wants to raise.
21 JUDGE MOLOTO: Indeed.
22 Mr. Harvey.
23 MR. HARVEY: Yes, please, Your Honours.
24 Going through the transcript of yesterday and today, I see that
25 there are a number of documents that were pulled up to which exhibit
1 numbers were not assigned at the time, and I think for the transcript to
2 be clear it would be important that exhibit numbers be assigned.
3 I refer first of all to the documents from the -- or the document
4 from the KLA Veterans Association, 3D230005, and the English translation
5 of that, the official translation at 0009. For both of those documents,
6 I would request that they be assigned an exhibit number.
7 MR. ROGERS: Your Honours, before we do that, I'm not quite sure
8 which ones those are, whether it's the letter or -- yes. Yes,
9 Your Honours will recall that I objected to the letter on the basis that
10 the witness did not adopt it and it can't be tendered through him because
11 he didn't adopt it, so I continue to object to the letter. And so far as
12 the other document is concerned -- so far as the other document is
13 concerned, which I think is the list of names --
14 MR. HARVEY: Yes, that's part of the same exhibit.
15 MR. ROGERS: And I don't have any objection to the list of names
16 being provided because the witness has spoken about it and to some extent
17 may or may not have adopted it, but I don't see that is a particular
18 difficulty but with the letter I do have a difficulty.
19 JUDGE MOLOTO: Now, for the guidance of the Chamber, can we give
20 these documents that we are talking about their 65 ter numbers, please.
21 When you talk of the letter, is that 3D230005?
22 MR. HARVEY: 0005 and the list of -- the numbers is 0006.
23 JUDGE MOLOTO: One step at a time, Mr. Harvey.
24 MR. HARVEY: Sure.
25 JUDGE MOLOTO: What is 3D230005? What is that?
1 MR. HARVEY: That is the letter from the Kosovo War Veterans
3 JUDGE MOLOTO: Right. And that one, it was objected to yesterday
4 and the objection was upheld.
5 MR. HARVEY: I was not clear that Your Honours had ruled on the
6 objection. The objection, if you recall, was on the basis that this
7 is -- notwithstanding that this is clearly a document on officially
8 headed note paper with a seal of the -- because I think Your Honour
9 initially thought it was not an official document, didn't have a seal or
10 anything like that, but then we pointed out that, in fact, you were
11 looking at, I think, the English translation. And I am sorry, I'm
12 speaking rather quickly. I'll slow down.
13 JUDGE MOLOTO: No, no, no, I grant you that, I'll concede that.
14 But prior to that, there was a letter that was successfully objected to
15 and you actually offered to withdraw it.
16 MR. HARVEY: Oh, no, sorry. That was a document from a bunch of
17 Serbian translations that had been seized at some stage. That one I
18 withdrew the request, and I'm not renewing that request now.
19 JUDGE MOLOTO: Okay. Now, the letter that had the seal, you
20 didn't tender and you say that is 3D230005.
21 MR. HARVEY: That's correct, yes. And the English translation of
22 that is 0009.
23 JUDGE MOLOTO: Mr. Rogers, I don't have any recollection of you
24 objecting to that letter in -- you did, and Mr. Emmerson took you up on
25 that. And I think at the end of the day your objection was overruled
1 when I saw the original with the stamps and signatures?
2 MR. ROGERS: Your Honours, I don't think it was, respectfully.
3 But I can't -- since its come up now I've got to rush to try to find it
4 in the transcript because I didn't expect to have to deal with this, but
5 I think Mr. Harvey suggested he would mark it for identification is my
6 recollection of how it went, and then Your Honour said, No, we don't do
7 it like that, it's got to come a different way, because the objection is
8 that it can't be tendered through this witness because the witness
9 doesn't accept the full content. He accepted a little bit of it but he
10 didn't accept the full content of what it said, and he, of course, can't
11 speak to its authenticity or accuracy, the actual thing, because it's not
12 something that he wrote. So that's my understanding of the difficulty of
13 tendering it through this particular -- this particular witness. If he
14 had accepted the full content of it, then it wouldn't be a problem, but I
15 don't think he did.
16 MR. HARVEY: I think with various reasons why documents may be
17 admitted, that they are not always admitted solely because the witness
18 has accepted the entirety or even part of. He certainly accepted that it
19 appeared to refer to (redacted), but the significance is that when
20 Your Honours come to review the transcript at the end of the day, and
21 evidence of this witness at the end of the day, it's useful, in my
22 submission, to have admitted for the limited purpose of recognising it --
23 what it is that we were talking about on the transcript and have that
24 exhibit available to you. At this stage, the exhibit goes no further
25 than helping to refresh your recollection about what on earth it was we
1 were talking about at the time.
2 JUDGE MOLOTO: [Microphone not activated] ... just can you
3 recapture just a little bit -- can you recapture the limited purpose for
4 which it has been tendered please? Is it being tendered for the
5 truthful -- not for the truthfulness of it's contents but the proof of
6 its existence.
7 MR. HARVEY: For the, if you like, the contextualisation,
8 horrible word, placing in context the questions and answers concerning
9 its contents, some of which the witness was, in my submission, able to
10 confirm and others of which he was not able to assist with.
11 [Trial Chamber confers]
12 MR. ROGERS: Your Honour, forgive me. Before you rule, if I may,
13 the information that has been agreed by the witness is clear from the
14 transcript and it is that information which is the adopted information
15 and that is what becomes the evidence. The risk of the document coming
16 in in any other way is that it becomes dealt with incorrectly. And
17 secondly, it's a document emanating from the Defence in the Prosecution
18 case which is not a Prosecution document that we seek to tender and which
19 has not been adopted by the witness except in the small ways that it has,
20 which is already evident from the transcript.
21 Now, I'm not familiar with the practice of the Defence
22 introducing into the Prosecution case its own documents. That would seem
23 to me to be inappropriate to do that in the Prosecution case because they
24 can't prove them. And this witness has adopted a -- has identified a
25 certain part. He said either yes or no, that's true, that's not. That's
1 it. That's the evidence. The document takes you no further and should
2 not be admitted
3 [Trial Chamber confers]
4 JUDGE MOLOTO: Objection is overruled. And just for the record,
5 it is -- there's nothing inappropriate about tendering -- cross-examining
6 counsel tendering a document or an exhibit via an opposing witness if
7 that witness can -- could be an appropriate witness through whom to
8 tender it. I'm not suggesting this was the case, but I'm saying there's
9 just not -- there's nothing inappropriate about that.
10 MR. ROGERS: Your Honour, I didn't -- I don't disagree with that.
11 But the witness didn't adopt it. That's the point.
12 JUDGE MOLOTO: I understand that. I understand that.
13 [Microphone not activated] ... witness, if it is possible to -- if he can
14 speak to it. Having said that and quite apart from everything else, the
15 objection is overruled.
16 Shall we give 3D230005 an exhibit number, please.
17 [Trial Chamber and Registrar confer]
18 JUDGE MOLOTO: Under seal, Mr. Harvey?
19 MR. HARVEY: Yes, I think it should be.
20 MR. ROGERS: Might I inquire from Your Honours as to the purpose
21 to which that document has been admitted.
22 JUDGE MOLOTO: For contextualisation.
23 MR. ROGERS: I understand, thank you.
24 JUDGE MOLOTO: Thank you.
25 [Trial Chamber and Registrar confer]
1 JUDGE MOLOTO: Mr. Harvey, you referred to 23009. I have no
2 record of you ever mentioning that yesterday whatsoever.
3 MR. HARVEY: It's merely the English translation of the document
4 which was on your screens, that happens to be its number. And so clearly
5 unless Your Honours' Albanian is much better than mine is, you may be
6 assisted by having 0009.
7 JUDGE MOLOTO: For that purpose we will admit it. Yes, please.
8 THE REGISTRAR: Your Honours, 3D230005, together with its
9 translation 3D230009, shall be assigned Exhibit D195. Thank you.
10 JUDGE MOLOTO: Under seal.
11 THE REGISTRAR: Under seal.
12 JUDGE MOLOTO: Thank you so much. And then what was the other
13 one, sir?
14 MR. HARVEY: And then 3D230006 --
15 JUDGE MOLOTO: Right.
16 MR. HARVEY: -- is the list of names which Mr. Rogers does not
17 object to.
18 JUDGE MOLOTO: Right. And --
19 MR. HARVEY: Or is it?
20 JUDGE MOLOTO: -- can we -- I see he's --
21 MR. ROGERS: No, no, I agree, Your Honour, for the same purpose
22 and the same reasons that Your Honours have already identified.
23 JUDGE MOLOTO: Thank you, Mr. Rogers.
24 Mr. Registrar -- is it also going to be under seal, I suppose, if
25 it's part of the letter.
1 MR. HARVEY: I'm just pausing for a moment, Your Honours, because
2 I just tried to pull up 0006 and I'm not getting it. I'm just a bit
3 nervous that I may have got the number wrong -- no, I'm told its right by
4 my infallible Case Manager so ...
5 JUDGE MOLOTO: [Microphone not activated]
6 THE REGISTRAR: Your Honours, 3D230006 shall be assigned
7 Exhibit D196, under seal. Thank you.
8 JUDGE MOLOTO: Thank you so much. Yes, Mr. Harvey.
9 MR. HARVEY: Next, Your Honours, you will recall from the
10 transcript of the witness's testimony, I put a number of pages to him or
11 at least I quoted from a number of pages, and I think it would be useful
12 to have those specific pages made exhibits for the assistance of the
14 JUDGE MOLOTO: And what is the number?
15 MR. HARVEY: There's a base-line number of 3D230259, which takes
16 us to the bundle of documents, and then within that bundle there are
17 pages 46, 47, 52, and 53. I think that's how we have to get to them.
18 They do have separate 3D23 numbers but that's how you actually get them,
19 you go through 0259 and then down to pages 46, 47, 52 and 53. And
20 perhaps if they could be collectively one exhibit.
21 JUDGE MOLOTO: Once again I don't remember recording 230259. Be
22 that as it may, is that the 65 ter number that you are giving us now for
23 that document? For all those pages that you want to keep?
24 MR. HARVEY: What happens with that document -- that better not
25 be me? No, it's not. What happens with that document is -- and I've got
1 each of the individual pages, they are 3D230304, and 0305, and 0310, and
2 0311, but it didn't work when we tried to get them up that way. So we
3 had to go through 0259 and pages 46, 47, 52 and 53. Sorry, this is
4 really tiresome, but ...
5 JUDGE MOLOTO: It's not only tiresome it appears like we -- the
6 record now appears like we are putting in new exhibits because all these
7 numbers were never referred to yesterday. So this is what I'm trying to
8 work through my mind.
9 MR. HARVEY: I think, with respect, they were referred to both
10 yesterday and today. And they were brought up on your screens.
11 JUDGE MOLOTO: 3D230304, 305, 3010 --
12 MR. HARVEY: 310 and 311.
13 JUDGE MOLOTO: You referred yesterday to 3D230008. You then said
14 no, that's wrong, it should be 3D230010. That you referred to. But
15 these numbers are new today on the transcript.
16 MR. HARVEY: With respect, Your Honour, I -- it will take me a
17 moment or two, but I know that I can take you to the relevant page
18 numbers in the transcript. If you require me to do so.
19 JUDGE MOLOTO: Well, if --
20 MR. ROGERS: [Previous translation continued] ... I want to shed
21 light not anything else.
22 JUDGE MOLOTO: Please do.
23 MR. ROGERS: Your Honour, may I suggest we deal with it this way:
24 I don't dispute or argue that those pages should not come in.
25 JUDGE MOLOTO: Okay.
1 MR. ROGERS: Might I suggest that Mr. Harvey out of court
2 notifies to us the pages because we are struggling to identify the
3 particular references to us, we agree it, and we tell you that we agree
4 it and then you admit them and we can do it by way of a joint motion.
5 Perhaps that will help and be the best way.
6 MR. HARVEY: Very helpful.
7 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
8 MR. HARVEY: I've got one last one which I think while it's fresh
9 in all of our minds it was the one Mr. Guy-Smith pulled on the screen,
10 3D230016. That was the letter from attorney Haber.
11 JUDGE MOLOTO: Right.
12 MR. HARVEY: And it was particularly page 2 of that exhibit which
13 would be -0017 in which the date of denial of the asylum application in
14 June of 2010 was referred to. That appears to me to be highly material
15 and should be exhibited as well.
16 JUDGE MOLOTO: Thank you very much, Mr. Harvey.
17 Mr. Registrar, 3D230016, could it please be given a number.
18 THE REGISTRAR: Your Honours, 3D230016 shall be assigned
19 Exhibit D197, under seal.
20 JUDGE MOLOTO: Under seal.
21 THE REGISTRAR: Thank you.
22 JUDGE MOLOTO: Thank you so much.
23 MR. HARVEY: That concludes my shopping list.
24 JUDGE MOLOTO: Before you conclude your shopping list, just so
25 that you don't come back with a supplementary list, you also called
1 3D23011 and it was called about three times yesterday. I don't know
2 whether -- I just want to be sure you are deciding not to tender it if
3 you are not calling it.
4 MR. HARVEY: It's -0311, Your Honour, and that is one of the
5 numbers that I was just read out and Mr. Rogers and I agreed we will
6 resolve between us.
7 JUDGE MOLOTO: Okay. My apologies.
8 MR. HARVEY: Not at all.
9 JUDGE MOLOTO: Okay. The other one was given an exhibit number.
10 Thank you so much.
11 MR. HARVEY: Thank you.
12 [Trial Chamber confers]
13 JUDGE MOLOTO: There's a query from Judge Delvoie. Was the
14 e-mail --
15 JUDGE DELVOIE: The e-mail the witness allegedly sent to
16 Mr. Versonnen, the investigator.
17 MR. HARVEY: That went in at Mr. Guy-Smith's request. I think
18 that's 19 --
19 MR. GUY-SMITH: That's D194, Your Honour.
20 MR. HARVEY: 194, thank you.
21 JUDGE DELVOIE: Thank you.
22 JUDGE MOLOTO: Okay. That concludes housekeeping. Anybody else
23 for housekeeping? Right.
24 Then that being the case, we'll stand adjourned to
25 21st of November in Courtroom III. Is it in the morning or afternoon?
1 In the morning. Court adjourned. See you until then.
2 --- Whereupon the hearing adjourned at 1.09 p.m.,
3 to be reconvened on Monday, the 21st day of
4 November, 2011, at 2.15 p.m.