1 Monday, 16 April 2012
2 [Open session]
3 [The accused entered court]
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is case number IT-04-84bis-T, the Prosecutor versus
10 Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj. Thank you.
11 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
12 May we have the appearances, please, for the day, starting with
13 the Prosecution.
14 MR. ROGERS: Yes, good morning, Your Honours. Paul Rogers
15 together with Aditya Menon for the Prosecution in the remote location.
16 And in the courtroom in The Hague are Ms. Daniela Kravetz,
17 Ms. Barbara Goy, Priya Gopalan, and our Case Manager today,
18 Ms. Line Pedersen.
19 JUDGE MOLOTO: Thank you very much, Mr. Rogers.
20 And for the Defence of Mr. Haradinaj.
21 MR. EMMERSON: Good morning, Your Honours. I appear this morning
22 for Mr. Haradinaj together with Mr. Dixon, Ms. O'Reilly, and Mr. Strong.
23 And in the courtroom in The Hague, assisting Mr. Haradinaj, is our
24 Case Manager Kerrie Rowan.
25 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
1 And for Mr. Balaj.
2 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith and
3 Colleen Rohan appearing on behalf of Idriz Balaj here at the remote
4 location. We are assisted in The Hague by Holly Buchanan.
5 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
6 And for Mr. Brahimaj.
7 MR. HARVEY: Good morning, Your Honours. Richard Harvey and
8 Luke Boenisch here in the remote location for Mr. Brahimaj. And in
9 The Hague, Mr. Paul Troop. Thank you.
10 JUDGE MOLOTO: Thank you so much.
11 May the witness please be brought in.
12 [The witness entered court]
13 MR. EMMERSON: Your Honour, whilst that -- whilst that's being
14 done, having discussed the matter with my colleagues, including
15 Mr. Rogers, we've indicated or agreed amongst ourselves provisionally,
16 subject to Your Honours' view, that there are certainly procedural
17 matters that need to be addressed to the Judges before any substantive
18 testimony is elicited. And might we therefore establish what the
19 position is with the witness first, and then have an opportunity to
20 address Your Honour.
21 JUDGE MOLOTO: Is the Chamber to understand that you would like
22 to do that in the absence of the witness?
23 MR. EMMERSON: Yes.
24 JUDGE MOLOTO: Okay.
25 Good morning, Mr. Witness. Will you please take your seat there.
1 May the -- may the witness please make the declaration.
2 Please stand.
3 THE INTERPRETER: The interpreters cannot hear the witness.
4 JUDGE MOLOTO: The witness has not started saying anything yet.
5 We're waiting for him.
6 Mr. Witness, will you make -- please make the declaration.
7 THE WITNESS: [Interpretation] How -- how am I supposed to -- to
8 do this?
9 JUDGE MOLOTO: Mr. Court Officer, are you able to assist the
10 witness, and can you switch his mike on so to ensure that he's recorded.
11 THE WITNESS: [Interpretation] I solemnly declare that I will
12 speak the truth, the whole truth, and nothing but the truth.
13 WITNESS: 80
14 [Witness answered through interpreter]
15 JUDGE MOLOTO: Okay. Thank you very much. You may be seated,
17 First of all, just before we proceed with the trial, Mr. Witness,
18 just to explain to you your rights.
19 I'll start off by explaining to you who the people are around the
20 court here. You have the Prosecution on the left side here, members of
21 the Prosecution. You have members of the Defence on the right side. And
22 other people that you see in the corner, they are staff from the ICTY.
23 We know that are you -- you have protective measures and that, therefore,
24 it should not be made public that you are here and that you are
25 testifying in this trial.
1 So I want you to understand that everybody inside here knows that
2 and, to the extent necessary, whatever is said here is going to stay here
3 and not go outside.
4 The people to your left, in the corner there, are people from
5 (redacted) -- sorry, would you
6 like to redact that. Thank you very much.
7 Can we redact that. I'm sorry, sir.
8 People from the remote location here will explain who they are in
9 private session. Am I right?
10 May the Chamber please move into private session for that
12 [Private session] [Confidentiality partially lifted by order of the Chamber]
13 THE REGISTRAR: [Via videolink] Your Honours, we are in private
15 JUDGE MOLOTO: Thank you very much.
9 Yes, Mr. Emmerson.
10 MR. EMMERSON: Your Honour, just before we move back into open
11 session, and obviously without the benefit of LiveNote, my note of the
12 remarks that Your Honour made in open session included the following to
13 the witness: To the extent that it is necessary, what is said here will
14 stay here. I -- I invite you to consider, in the light of the fact that
15 we are live-linked to The Hague, whether that's a full explanation of the
17 JUDGE MOLOTO: Yeah. I must make that correction then,
18 Mr. Witness. There -- your testimony -- your -- let me put it this way:
19 Your protective measures are in place. You've got to know you've got
20 face distortion and voice distortion. And the location where are you is
21 also supposed to be unknown to the public, so all those things will stay
22 protected. And if we go into private session, if there's anything that
23 has to be said is said in private session, we'll do that, and we'll stay
24 within the confines of this Court and the people who are in The Hague
25 within the court only, and not to the public. That's the private session
1 protection measures that you are accorded.
2 Before -- there are further advices that I would like to give
3 you, but before we do that, I've been made aware, just before we started
4 this morning, before you came in, that counsel would like to make certain
5 representations to the Chamber. And once they've done that, we will come
6 back to you and give you further legal -- further advice on your rights
7 related to the giving of testimony.
8 MR. EMMERSON: Again, Your Honour, before the witness withdraws,
9 and in his presence but whilst in private session, if necessary, simply
10 for the sake of the record, would Your Honour identify those who are
11 party to those proceedings in courtroom in The Hague, so that the record
12 reflects those who are present. In the ordinary way that Your Honour
13 would do at the course of the start of a daily hearing.
14 JUDGE MOLOTO: Yes. Except that we usually don't do that.
15 Well, okay. The Court Officers in the The Hague, would you
16 please do identify yourselves.
17 THE REGISTRAR: [Via videolink] Your Honours, my name is
18 Viktorija Taseva, representative of the Registry, together with
19 Mr. Dirk Verheijen, Court Usher.
20 THE INTERPRETER: Microphone, please.
21 THE REGISTRAR: [Via videolink] Your Honours, can you hear me?
22 THE INTERPRETER: Microphone, please, for the interpreters.
23 THE REGISTRAR: [Via videolink] Your Honours, can you hear me now?
24 JUDGE MOLOTO: We can hear you, ma'am.
25 THE REGISTRAR: [Via videolink] If I may repeat in case it was
1 missed. Your Honours, my name is Viktorija Taseva, representative of the
2 Registry, and together with me is Mr. Dirk Verheijen, the Court Usher in
3 the courtroom, assisting.
4 JUDGE MOLOTO: Thank you so much.
5 Mr. Emmerson, can we move into open session now.
6 MR. EMMERSON: Well, I think there are other people in the
7 courtroom, Your Honour, watching the proceedings. It's only right that
8 all parties should have that clear on the record.
9 JUDGE MOLOTO: Well, do we see them? I don't know who else is
11 MR. GUY-SMITH: I think, Your Honour, considering
12 the -- [overlapping speakers] ...
13 JUDGE MOLOTO: I am aware -- I know that the accused are supposed
14 to be there, but I don't see them.
15 MR. GUY-SMITH: Well, perhaps we could get a ... there we go.
16 JUDGE MOLOTO: Do you want all those people to be introduced?
18 May all the people in there introduce themselves. Viktorija I
19 see. Mugambi's next to you. Can we start with him and can he introduce
20 himself and can we go up the row, please.
21 MR. HARVEY: I don't like to interrupt, but I understand that
22 none of this is going on the transcript.
23 MR. JOUET: [Via videolink] Mugambi Jouet, associate legal
25 JUDGE MOLOTO: Proceed, please.
1 MR. JOUET: [Via videolink] My name is Mugambi Jouet, associate
2 legal officer in the judicial Chambers.
3 JUDGE MOLOTO: Can we go up to the people behind you, Mugambi.
4 MS SCHUON: [Via videolink] My name's Christine Schuon, also
5 associate legal officer for Chambers.
6 MR GRZEGOREK: [Via videolink] Nathan Grzegorek, intern in
8 MR. YOUSSEF: [Via videolink] Mohamed Youssef. Mohamed Youssef.
9 Your Honours, Mohamed Youssef, intern in Chambers.
10 MS. YONGJUNE: [Via videolink] Min Yongjune, associate in
12 MS. EUSSEN: [Via videolink] Amy Eussen, associate legal officer
13 in Chambers.
14 MR. TROOP: [Via videolink] Your Honour, before we move into open
15 session, can I raise one matter very briefly. And the reason I raise
16 that is because at the outset where the individuals representing the
17 (redacted), the microphone was not activated, which
18 meant it wasn't clear who they were. We caught some of the last names,
19 but it wasn't clear whether they were lawyers acting in a private
20 capacity or a judge sent by (redacted), and perhaps we could
21 just clarify that so everyone here in The Hague -- private session.
22 JUDGE MOLOTO: It was a judge sent by the --
23 MR. HARVEY: And we'll need a -- we will need a redaction, of
25 JUDGE MOLOTO: Yeah, and we'll need a redaction.
1 It was a judge sent by the government of the remote location,
2 with lawyers within the (redacted) in the remote location
3 who are representing the (redacted).
4 MR. TROOP: [Via videolink] Thank you, Your Honour. I apologise
5 for mentioning the place. I understood we were in private session and it
6 was -- [Overlapping speakers] ...
7 JUDGE MOLOTO: [Overlapping speakers] ...
8 MR. TROOP: [Overlapping speakers] ... not necessary to ...
9 JUDGE MOLOTO: But they are not here in their private capacities,
10 they are here in their official capacity.
11 MR. TROOP: [Via videolink] Thank you, Your Honour.
12 JUDGE MOLOTO: Now, Mr. Emmerson, we usually don't introduce the
13 indictees. Do you want them to introduce themselves?
14 MR. EMMERSON: Your Honour, yes. Partly because we are partly
15 here and partly there.
16 JUDGE MOLOTO: Okay.
17 MR. EMMERSON: And I want to ensure that they're able to follow.
18 I'm slightly concerned, for example, that the accused hadn't picked up,
19 couldn't have picked up, the role being played by the representatives of
20 both the Court and the (redacted) here. And it's very
21 important that communication run both ways.
22 JUDGE MOLOTO: Thank you very much.
23 Can we then ask the indictees to start, starting with you,
24 Mr. Haradinaj.
25 THE ACCUSED HARADINAJ: [Interpretation] Ramush Haradinaj.
1 THE ACCUSED BALAJ: [Interpretation] Idriz Balaj.
2 JUDGE MOLOTO: Mr. Brahimaj.
3 THE ACCUSED BRAHIMAJ: [Interpretation] Lahi Brahimaj.
4 JUDGE MOLOTO: Thank you very much, Mr. Brahimaj.
5 And the other people are security officers within the court. I
6 don't think we need to go through them. Thank you so much.
7 MR. GUY-SMITH: Since we're just dealing with introductions, I
8 notice that there's one other individual with the representatives from --
9 JUDGE MOLOTO: -- the remote location.
10 MR. GUY-SMITH: -- the remote location. And if we could have
11 that individual identified for the record so we have a complete record, I
12 think that would be appropriate.
13 JUDGE MOLOTO: [Microphone not activated] ... into your mike. And
14 introduce yourself, sir.
15 (redacted): The gentleman who is at the table with us,
16 Your Honours, is (redacted) who is an Albanian interpreter
17 and was requested by the Court as a backup interpreter to be present in
18 the event there were technological difficulties with the interpretation
19 in The Hague.
20 JUDGE MOLOTO: Thank you so much, (redacted).
21 Yes. That completes business within private session. Anybody
22 wants to raise anything just before we go into open session?
23 Okay. May the Chamber please move into open session.
24 [Open session]
25 THE REGISTRAR: [Via videolink] Your Honours, we are in open
2 JUDGE MOLOTO: Thank you very much.
3 I indicated, sir, that there are some submissions that the
4 parties would like to make in your absence. We'll ask you to excuse
5 yourself for some time. We'll call you just now, at which time we'll
6 explain your rights further to your -- before you start. If you may
7 stand down a little bit.
8 [The witness stands down]
9 JUDGE MOLOTO: Mr. Emmerson.
10 MR. EMMERSON: Your Honours, can I just ask that you be handed,
11 slightly informal -- informally, copies of a letter --
12 MR. ROGERS: Mr. Emmerson, may we go into private session --
13 [overlapping speakers] ...
14 MR. EMMERSON: I'm so sorry, I thought we were in private
15 session. I apologise.
16 JUDGE MOLOTO: May -- may the Chamber please move into private
18 [Private session] [Confidentiality partially lifted by order of the Chamber]
19 THE REGISTRAR: [Via videolink] Your Honours, we're in private
21 JUDGE MOLOTO: Thank you so much.
22 Yes, Mr. Emmerson.
23 MR. EMMERSON: Your Honour, this is a letter received yesterday
24 evening on arrival from Prosecution to Defence containing some Rule 68
25 exculpatory material supplied to the Prosecution from an unidentified
1 Rule 70 provider. And we are told, although the letter doesn't say it,
2 that a condition attached to the Rule 70 disclosure to the Prosecution
3 was that the substance of the communication could be disclosed to the
4 Defence but on condition that the identity of the provider was not
5 disclosed. And Your Honours will see in quotation marks the nature and
6 substance of the Rule 70 -- Rule 68 material appearing, I'm told verbatim
7 in quotation marks, which includes detailed allegations of dishonest
8 motivation on the part of the witness, as well as a specific comment on
9 the truth or otherwise of the allegations that he makes. And it
10 concludes with the sentence, unsurprisingly in view of what has been
11 disclosed, that the Prosecution makes no representation as to the
12 reliability of the material.
13 Now clearly, if this material at one end of the spectrum were
14 wholly reliable, then its impact on the proceedings would be very
15 substantial indeed. If at the other end of the spectrum it were wholly
16 unreliable, then its impact would be negligible or nothing. In order to
17 therefore assess the reliability or weight to be attached to this
18 material, it needs to be investigated. (redacted)
22 Now, turning to the Rule. Of course, Rule 68 provides that
23 subject to the provisions Rule 70, the Prosecutor must disclose to the
24 Defence all material of potential exculpatory character, and that would
25 include not simply a summary of what somebody may be saying, but
1 information sufficient to identify who that person is and what the
2 reliability of their information is and the weight to be attached to it.
3 And in due course, in order to assess this material, the Trial Chamber is
4 going to have to have that information, otherwise it will be material the
5 reliability of which you are simply disabled from assessing. So the
6 starting point, as we would submit, is the fair trial necessarily
7 requires the disclosure of this (redacted) in a form in which its
8 reliability can be investigated and considered by the Trial Chamber,
9 because, if reliable, the consequence would be that the evidence of the
10 witness was unreliable.
11 Rule 68(3) requires the Prosecutor to seek to obtain the consent
12 of the provider to the disclosure of the material, and clearly the
13 Prosecutor has obtained the consent of the provider either by seeking it
14 and having a positive response or because the consent was given in the
15 first place to the disclosure of the substance. But in light of what
16 Mr. Rogers told me this morning, namely that that disclosure to the
17 Defence was conditional on the identity of the provider not being
18 disclosed, we are left in a position where we are all disabled from
19 assessing its reliability.
20 Now, there remains the possibility of a Rule 68(4) application to
21 the Trial Chamber sitting in camera for an authorisation not to disclose
22 some or all of Rule 68 material. So in principle, it could be the
23 position that the Prosecutor could make or indeed might already have made
24 an application to the Trial Chamber authorising the Prosecutor not to
25 disclose the information (redacted)
1 (redacted). Any such application, in our submission, would be
2 one which on mature consideration and inter-party submissions would be
3 bound to fail, because once one has reached the position that this
4 information, if reliable, would wholly undermine the reliability of the
5 witness, it must follow that a fair trial requires a proper evaluation of
6 its reliability. Therefore, there can be, in our submission, no
7 justifiable basis for preventing the Defence from getting at the root of
8 this material so as to expose its reliability and to be in a position to
9 make informed submissions to the Chamber about it.
10 So I have no idea whether an application has already been made
11 under Rule 68(4), but if it has, and if the result was that that
12 information was not ordered to be disclosed, then we would wish to be
13 heard, because we cannot at the moment, as presently advised, see any
14 lawful basis upon which such authorisation could have been given. And in
15 that context, we rely on the decision in the Prosecutor against Brdjanin
16 and Talic, 23rd of May, 2002, paragraph 20, decision -- the public
17 version of the confidential decision on the alleged illegality of Rule 70
18 of the 6th of May, 2002. And the relevant passage in paragraph 20
20 "Rule 70 ... does not relieve the Prosecution of disclosing
21 material it would otherwise be required to disclose pursuant to Rule 68."
22 Putting it shortly, Rule 68 trumps Rule 70 if the requirements of
23 a fair trial necessitate disclosure of the information. There can, in
24 our submission, be no sensible basis for arguing or concluding that the
25 information necessary in order to determine whether this information in
1 this letter is reliable can probably be withheld from the Defence
2 consistent with the requirements of a fair trial. That being the case,
3 either it's got to be disclosed or the Prosecution have to abandon
4 reliance on this witness's evidence.
5 Those are our submissions.
6 JUDGE MOLOTO: Thank you, Mr. Emmerson.
7 Yes, Mr. Guy-Smith.
8 MR. GUY-SMITH: Join.
9 MR. HARVEY: Adopt.
10 JUDGE MOLOTO: Mr. Rogers.
11 MR. ROGERS: Your Honour, of course, Rule 70 -- Rule 68 expressly
12 refers to Rule 70 in its opening line. Subject to the provisions of
13 Rule 70, Rule 68 applies. And as Your Honours know, under Rule 68(4),
14 the Prosecution has the ability in certain circumstances to apply to the
15 Court for relief from its obligations to provide material which is
16 exculpatory. As Your Honour knows, there is a - perhaps I can put it
17 delicately - there is a balance between the provision of material under
18 Rule 70 and Rule 68. And I understand my learned friend's position
19 relating to Rule 68, but the balancing exercise between those two rights
20 is found in Rule 68(4). And Rule 68(4) does, in certain circumstances,
21 relieve -- or if the Court permits it, relieves an obligation to provide
22 material to the Defence that would otherwise be exculpatory if it were to
23 fit within the specific parameters of Rule 68(4).
24 Your Honours, Mr. Emmerson wishes first of all to know who the
25 provider is. We would submit that the specific information relating to
1 the specific Rule 70 provider is not material that would ordinarily fall
2 within Rule 68 because it of itself is not exculpatory nor could it
3 undermine the evidence of the Prosecution or affect the credibility of
4 the witness, the mere identity of the provider itself. (redacted)
8 Your Honours, in order to develop my submissions, I would wish,
9 please, to go in camera and make further submissions to Your Honour ex
10 parte without the presence of the Defence or any other party in order to
11 make further submissions in this regard.
12 Your Honours, my learned friend has already outlined what it is
13 that he is interested in and why he is interested in it, so to that
14 extent he's already been heard on the specifics. And now I would wish to
15 develop my submissions further, please, in camera under Rule 68(4).
16 MR. EMMERSON: Your Honour, I have no objection to that course.
17 But the concomitant of it is that the Trial Chamber should give reasons.
18 There's no -- despite the fact that an application can be made under
19 Rule 68(4), ex parte, and for all I know an application may already have
20 been made, there is no justification for withholding from the Defence
21 either the fact that an application has been made, if one has already
22 been made, and the outcome of it; nor of the reasons for it. And that --
23 that, in our submission, would only be appropriate if the Rule 70
24 considerations required the -- that information to be withheld. So it's
25 perfectly possible, for example, if a Trial Chamber were to take the view
1 that the identity of the Rule 70 provider need not be disclosed, to give
2 a reasoned ruling on that without identifying the Rule 70 provider. But
5 (redacted). But the Defence can't get at that without getting through the
6 route by which this information was provided. And a fair trial
7 necessitates that, not requires it.
8 There's no question of a balance. The language of balance
9 between 68 and 70 is completely misconceived. There's no issue of
10 balance. If a fair trial requires disclosure, it must be disclosed,
11 because a trial cannot proceed in circumstances that wouldn't meet the
12 requirements of fairness. On balancing two considerations, the balance
13 is struck firmly in favour of disclosure of anything that may be
15 And if the Prosecution is not in a position in those
16 circumstances to satisfy you that this material is of no evidential
17 weight whatever, then it must be disclosed. And the only alternative,
18 where remedying the obvious unfairness that would otherwise result, would
19 be for the Trial Chamber to give a ruling that the terms of this
20 disclosure will be treated as agreed facts. Anything short of that, in
21 our submission, would require disclosure so that the weight, relevance,
22 and importance of this potentially vital piece of disclosure can be
23 properly evaluated.
24 Those are our submissions. And I'm very happy, for my part, for
25 Mr. Rogers to address you ex parte.
1 MR. GUY-SMITH: In addition to those remarks made by
2 Mr. Emmerson, followed through its logical conclusion, the absence of
3 (redacted) being given to the Defence affects the
4 fundamental integrity of these proceedings, unless, of course, the
5 Trial Chamber does adopt the position as suggested by Mr. Emmerson and
6 these be treated as adjudicated facts.
7 JUDGE MOLOTO: He said agreed facts.
8 MR. EMMERSON: And that was a slip of the tongue. Mr. Guy-Smith
9 is correct. Your Honours would have to treat it as adjudicated facts.
10 JUDGE MOLOTO: And couldn't the parties agree -- [Overlapping
11 speakers] ...
12 MR. GUY-SMITH: Well, unless, of course, Mr. Rogers is willing at
13 this point to agree to these facts. And if he's willing to agree to
14 these facts, then we obviously would be in a different position.
15 JUDGE MOLOTO: Okay. Let's just deal with that question of
16 agreed facts. Just respond to that one, Mr. Rogers.
17 MR. ROGERS: Your Honour, I don't -- of course, I'm not going to
18 agree them as an agreed fact, and that is the reason why we put in the
19 letter that we could not deal with the reliability of the information.
20 That we couldn't say one way or the other in relation to that. It may
21 well be unreliable. And for those reasons I don't want to develop that
22 any further.
23 So I don't -- in short, I don't agree with the proposition that
24 they must be treated as agreed facts.
25 JUDGE MOLOTO: Thank you so much. Now --
1 MR. GUY-SMITH: Well, then I go back to the issue of adjudicated
2 facts -- [microphone not activated] ...
3 MR. ROGERS: Or adjudicated facts.
4 JUDGE MOLOTO: Okay.
5 MR. GUY-SMITH: That would be a matter for you to decide, not a
6 matter for Mr. Rogers to agree to. Because then they would be agreed
8 JUDGE MOLOTO: Indeed. And the Chamber, for the time being, will
9 put the question of adjudicated facts to the side. And I just want to
10 address the issues that were raised this morning by the Defence, and in
11 particular what you have raised, Mr. Emmerson.
12 Quite clearly, to resolve the issues that we have raised this
13 morning would take a lot of time. There are filings that need to be
14 made - both parties - and submissions made, and investigations be made.
15 And we are here at the remote location. We have limited time here at the
16 remote location. Without prejudice to the rights of the parties to
17 litigate this issue to the full extent, would the parties be agreeable to
18 a suggestion from the Bench that we carry on with the taking of the
19 testimony of the witness, which is the businesses we've come here for,
20 and that you litigate these issues back in The Hague?
21 MR. EMMERSON: Yes.
22 JUDGE MOLOTO: Thank you so much.
23 Can we then --
24 MR. GUY-SMITH: That would be acceptable, yes.
25 JUDGE MOLOTO: Mr. Harvey.
1 MR. HARVEY: To us as well. Thank you.
2 JUDGE MOLOTO: Mr. Rogers.
3 MR. ROGERS: I'm happy to add my voice of consent, yes.
4 JUDGE MOLOTO: Yes, thank you so much. Can we then do it that
5 way and curtail this discussion at this point, call the witness, and do
6 the business of the trip.
7 Is that okay?
8 MR. EMMERSON: Your Honour, yes.
9 JUDGE MOLOTO: Thank you so much.
10 Are we or are we not in private session? I'm not quite sure.
11 Where are we? We're in private session?
12 THE REGISTRAR: Your Honours, we are in private session. Did you
13 ask to move into open session?
14 JUDGE MOLOTO: Yes, please, ma'am.
15 MR. ROGERS: We are in closed session to bring this witness in.
16 I just -- for the record and the transcript, as it comes, I wouldn't want
17 there to be any mistake later on.
18 JUDGE MOLOTO: Okay. Fair enough.
19 May the Chamber then move into closed session for purposes of the
20 witness's entrance.
21 THE REGISTRAR: [Via videolink] Yes, Your Honours. But for the
22 record, the last three lines are part of the public record of Mr. Rogers.
23 [Closed session] [Confidentiality partially lifted by order of the Chamber]
3 JUDGE MOLOTO: Witness, can you hear me in the language that you
5 THE WITNESS: [Interpretation] Yes.
6 JUDGE MOLOTO: I indicated, before you were excused, that we will
7 give -- explain your rights further as you come back.
8 As you do know, you are a protected witness, which means that
9 you're testifying with your face not being shown to the public, your
10 voice not being heard by the public, and your identity not being
11 revealed. You are come -- we've asked you to come here to come and
12 testify in these proceedings, and to the extent that you may be involved
13 in other proceedings outside in any other forum, it may very well be that
14 questions you are asked might incriminate you in those proceedings. And
15 to that extent, if you are able to identify the kind of question the
16 answer to which would so expose you, you are entitled to say, "I would
17 not like to answer that question because it would incriminate me." Okay?
18 However, it may also be that you may want -- not want to answer a
19 specific question for no good reason, in which case that might just
20 expose you to some criminal proceedings within this forum.
21 Now, you may -- you are entitled to have a lawyer sitting next to
22 you to advise you, should you need one to tell you -- to give legal
23 advice as to what kind of question you may or may not answer to. I would
24 like, first of all, to find out from you whether you feel comfortable to
25 go on with these proceedings without such lawyer.
1 THE WITNESS: [Interpretation] I need a lawyer. (redacted)
9 THE REGISTRAR: [Via videolink] Your Honour, if I may interrupt.
10 JUDGE MOLOTO: You may, ma'am.
11 THE REGISTRAR: [Via videolink] Your Honours, we in The Hague did
12 not receive any interpretation of what the witness said a minute ago.
13 JUDGE MOLOTO: Witness, can you repeat what you said a minute
14 ago. You said you need a lawyer (redacted)
15 (redacted). Would you like to repeat that so that they can
16 interpret it back in The Hague.
17 THE WITNESS: [Interpretation] Yes. (redacted)
24 JUDGE MOLOTO: Would you like to say something about the lawyer
25 that you mentioned earlier.
1 MR. TROOP: [Via videolink] Your Honour, before we go further, can
2 I interrupt, please?
3 THE WITNESS: [Interpretation] Yes.
4 MR. TROOP: [Via videolink] Your Honour, can you hear me?
5 JUDGE MOLOTO: I can hear you.
6 MR. TROOP: [Via videolink] My client says he cannot hear and is
7 not following proceedings. So can I ask that this matter is resolved
8 before we go any further.
9 JUDGE MOLOTO: And which is your client?
10 MR. TROOP: [Via videolink] Mr. Brahimaj.
11 THE INTERPRETER: Your Honour, maybe you can ask the witness to
12 speak closer to the microphone, because we can hardly hear him well.
13 JUDGE MOLOTO: We can do that. But can we just make -- I can see
14 somebody is attending to Mr. Brahimaj's mike -- earphones. I suppose
15 he's trying to help the ...
16 MR. EMMERSON: Would it be helpful to see if the other accused
17 are following?
18 JUDGE MOLOTO: We'll find out.
19 Can we be updated on progress there in The Hague, please.
20 MR. TROOP: [Via videolink] Your Honour, I think it's still being
21 discussed, but my understanding is that none of the three accused can
22 hear and follow proceedings.
23 Your Honour, the situation, as I understand it, is there is a
24 technical problem in that the system that we're using here has two
25 separate microphone inputs or earphone inputs, and the only way that the
1 accused will be able to follow will be switching between one and the
2 other as the witness answers the questions and the -- and -- and the
3 interpretation of the Albanian language is provided.
4 Clearly that's unacceptable for -- to enable the individuals to
5 follow the proceedings. It's not practicable for them to switch from one
6 headset to the other.
7 MR. EMMERSON: Your Honour, if the position is - I'd like just to
8 clarify this - that the accused can hear the Albanian original, it may be
9 that that is sufficient for the purposes of ensuring their ability to
10 follow the proceedings, since they're all fluent in Albanian.
11 MR. TROOP: [Via videolink] But the difficulty -- the difficulty
12 is --
13 JUDGE MOLOTO: [Overlapping speakers] ...
14 MR. TROOP: [Via videolink] Yes, I did hear that, Your Honour.
15 The difficulty is they can't hear the questions.
16 MR. GUY-SMITH: There's also another difficulty which is, on
17 occasion there are translation problems. So we end up with a record, a
18 written record, that may or may not be accurate.
19 JUDGE MOLOTO: But that problem, that's -- [overlapping
20 speakers] ...
21 MR. GUY-SMITH: Well, I know. But to the extent that in this
22 trial, as we've experienced it, that's been corrected on a number of
23 occasions, in real time.
24 JUDGE MOLOTO: Thank you.
25 MR. TROOP: [Via videolink] Your Honour, if you will excuse me.
1 Can I just check if there's an improvement in the situation, because we
2 have a technician here who may be addressing the problem.
3 JUDGE MOLOTO: Would you check, sir, and give us an update.
4 [Technical difficulty]
5 MR. TROOP: [Via videolink] Your Honour, the technical staff have
6 had a look at the situation, but in order to check whether or not --
7 sorry, I'll say that again.
8 The technical staff have had a look at the situation, but in
9 order to check whether or not the accused are receiving both the
10 translation of the questions and the original language of the witness, we
11 will need somebody to check the original language. So somebody speak
12 English for it to be translated and someone speak the Albanian language
13 so that we can check that both channels are being heard by the accused,
15 JUDGE MOLOTO: Can you run that past me one more time. I just
16 don't understand exactly what you are proposing.
17 MR. TROOP: [Via videolink] The situation, Your Honour, is that
18 there appear to be two separate channels. One is the Albanian, which is
19 received through translation from the English, i.e., the questions that
20 are asked by other members of the courtroom, and the second channel is
21 the Albanian original which is spoken by the witness. Those are -- those
22 are on two separate channels.
23 Now, previously, in order to follow proceedings, the accused
24 needed to switch the headphone input between two separate plugs. The
25 technical staff may have addressed this situation now, but in order to
1 check whether that situation has been properly solved or properly
2 addressed, we will need somebody to speak Albanian, perhaps the witness
3 or another Albanian speaker who may be present, in order to check that
4 the other channel is now being heard by the accused as well as the
5 original translation.
6 JUDGE MOLOTO: Thank you so much.
7 Mr. Witness, can you say a few words, and just say, "testing,
8 testing, testing," in your language.
9 THE WITNESS: [Interpretation] Test, test, test.
10 JUDGE MOLOTO: I see Mr. Balaj is nodding as if in agreement that
11 he heard.
12 Mr. Ramush Haradinaj is smiling and Mr. Brahimaj -- [Overlapping
13 speakers] ...
14 THE ACCUSED HARADINAJ: Your Honours, I was -- I was hearing
15 before. Sorry.
16 JUDGE MOLOTO: Okay.
17 Mr. Brahimaj, let's directly -- can you hear, Mr. Brahimaj?
18 THE ACCUSED BRAHIMAJ: [Interpretation] Yes. From now on, yes.
19 JUDGE MOLOTO: Thank you.
20 Mr. Balaj?
21 THE ACCUSED BALAJ: [Interpretation] Yes, Your Honour, I hear.
22 Thank you.
23 JUDGE MOLOTO: Mr. Haradinaj.
24 THE ACCUSED HARADINAJ: Yes.
25 JUDGE MOLOTO: Well, I'm not going to go through each one of you,
1 but I suppose, if their -- you dont hear, you will say so.
2 Now, somebody was talking at the time when we had this glitch.
3 MR. EMMERSON: Your Honour was in the process of trying to
4 establish from the witness how long it would take for his lawyer to
6 JUDGE MOLOTO: Thank you so much, Mr. Emmerson.
7 Yes, Mr. Witness, you -- one little point I haven't explained to
8 you. We will keep addressing you as "Mr. Witness" and not through your
9 proper name, sir, precisely for the reasons of your protection, okay? So
10 don't feel offended by us addressing you as "Mr. Witness," or
11 "Witness 80."
12 How soon, sir, are you able to bring your lawyer here?
13 THE WITNESS: [Interpretation] (redacted)
20 [Trial Chamber confers]
21 MR. ROGERS: Your Honours, forgive me for interrupting. May I
22 make a suggestion. It may or may not assist Your Honours. There appear
23 to be two issues that we're confronted with. (redacted)
24 (redacted). The second issue relates to whether he
25 needs, in fact, a lawyer to assist him to answer questions. The issue
1 relating to answering questions would be a matter, respectfully, that
2 goes to, first of all, the outstanding proceedings, whether he --
3 anything touches upon that which may give rise to a right, so a privilege
4 against self-incrimination. (redacted)
8 (redacted). Might I respectfully suggest (redacted)
9 (redacted) before we deal with the legal issue. (redacted)
14 (redacted) if -- and the Court to determine whether or not, perhaps with
15 the assistance, if necessary, (redacted). I don't know
16 whether to call him "My Lord" or "His Honour"; I don't know what the
17 normal form of address is, so if I call him "Your Honour," I hope I won't
18 be disrespectful. Of course, in my jurisdiction, (redacted) are Lords.
19 Might I suggest we deal with it in -- in -- in that way. (redacted)
20 (redacted); and then, secondly, deal with the
21 legal issue (redacted).
22 JUDGE MOLOTO: Well, the Chamber was trying to deal with the
23 legal issue first. But, any way, if the (redacted) becomes -- if you
24 think we should start with that, we can go into that.
2 THE WITNESS: [Interpretation] Yes, yes.
5 MR. ROGERS: [Microphone not activated] ... as Your Honour was
6 asking him, and he seems to have put forward the letter.
7 Might we ascertain whether, Mr. Witness, we can have a look at
8 the letter you've put forward, please?
9 THE WITNESS: [Interpretation] Yes, yes.
10 JUDGE MOLOTO: Mr. Court Officer, can you please -- [microphone
11 not activated]
12 Show it to the Prosecution and then show it to the counsel on the
14 MR. GUY-SMITH: Can we see them before -- [Overlapping
15 speakers] ...
16 MR. EMMERSON: Can we see them before you make submissions,
18 MR. GUY-SMITH: Are you making any submissions?
19 MR. ROGERS: Yeah, and I just wanted to read them, first of all,
20 because they appear to be two different letters.
21 MR. GUY-SMITH: Well, you've read them and now you're standing to
22 make a submission, which is why I asked the question.
23 JUDGE MOLOTO: Mr. Rogers, read, and pass the letters to the
24 other people.
25 MR. ROGERS: Your Honour, I can't pass the letters across because
1 they reveal protected information relating to the witness.
2 MR. GUY-SMITH: At this point in time, the witness has under oath
3 consented to all of the parties pursuant to Mr. Rogers's question to see
4 the letters.
5 MR. ROGERS: Your Honour --
6 MR. GUY-SMITH: It's enough already of this. (redacted)
7 (redacted). And the witness specifically was asked if he
8 consented to the letters being seen by Mr. Rogers, under oath, and he
9 said yes.
10 MR. ROGERS: Yes, but he hasn't consented, obviously, to the
11 provision of information which would undermine his protective measures.
12 And this information --
13 MR. EMMERSON: That is not entirely true. He's given a written
14 statement to the Prosecutor indicating that he would be willing to give
15 evidence without protective measures on one occasion.
16 MR. ROGERS: Protective measures, as my learned friend knows, are
17 in place. And until the Court removes them, none of us can interfere
18 with them. And by providing the letters in the form that they currently
19 exist, we will be interfering with them.
20 MR. GUY-SMITH: I beg to differ with Mr. Rogers on that point.
21 This is third-party information that he's referring to. It does not deal
22 with the himself.
23 [Trial Chamber confers]
24 JUDGE MOLOTO: Unless we're missing something, we don't see,
25 Mr. Rogers, what it is that you say would be --
1 MR. ROGERS: Your Honour, one of the letters is the witness's
2 address, because it's written to him. (redacted)
5 (redacted). They could be redacted and then provided, (redacted)
6 (redacted), as long as there's no identifying
7 information, (redacted)
9 JUDGE MOLOTO: Let me just double-check. Are we or are we not in
10 private session? We're in closed session.
11 Now, are you saying, sir, that, being in closed session, you do
12 not want your colleagues on the opposite side being aware of that
13 information on -- under confidentiality?
14 MR. ROGERS: Yes. Because they're not entitled to know the
15 address of the witness, because that's in conflict with his protective
16 measures. And there is a prior court order that only allows us to
17 identify his presence in this country and not even the (redacted). So --
18 JUDGE MOLOTO: Thank you.
19 MR. ROGERS: -- unless there are changes to that.
20 JUDGE MOLOTO: Thank you so much.
21 I don't think that is the kind of information that would affect
22 your decision on the other side, if that is redacted.
23 Witness, do you mind if we cancel some information, (redacted)
24 (redacted), but your address (redacted), that
25 identify part of your protective measures before we show it to the other
1 side? You don't mind? Thank you so much.
2 May you do so, Mr. Registrar.
3 [Trial Chamber confers]
4 MR. HARVEY: Your Honours, might I ask: (redacted)
5 (redacted), I would oppose that. And I would most
6 certainly oppose the redaction of the (redacted).
7 JUDGE MOLOTO: We will make the photocopies of this document,
8 redact the photocopies, keep the original unredacted. Can you litigate
9 your -- that objection later and we can lift it up if the Chamber decides
10 in your favour?
11 MR. HARVEY: Yes.
12 JUDGE MOLOTO: Thank you so much.
13 Make two copies.
14 [Trial Chamber confers]
15 JUDGE MOLOTO: Yes, Mr. --
16 MR. ROGERS: Your Honours, we're coming up to a break. I wonder
17 if it's a convenient moment to take that break whilst we sort out the
18 redactions and distribution to the parties. It will then give everybody
19 an opportunity to read the letters and then make any appropriate
20 submissions on --
21 JUDGE MOLOTO: We -- the break is going to come five minutes
22 later than usual, that is, twenty past, so it does seem as if we still
23 have some more -- some time that we can put good use in court here, if
24 there is any business to be attended to in the meantime while the copies
25 are being made.
1 Is there -- is there any -- yes, Mr. Guy-Smith.
2 MR. GUY-SMITH: Well, there -- perhaps we can examine more of the
3 issue of the lawyer at this time.
4 JUDGE MOLOTO: Oh, thank you so much.
5 [Trial Chamber confers]
6 JUDGE MOLOTO: Mr. Registrar, can I suggest that you have two
7 copies of the documents, suggest that you redact that identifying
8 information, the addresses (redacted)
9 (redacted), and give the redacted form to the Defence. You
10 keep in your Registrar's file the unredacted part. There is an objection
11 raised. Should a ruling go in favour of the objection, we might have
12 to -- we might need the unredacted copy, so keep it on the file.
13 And then the parties can read the letter during the break at the
14 time. But we were asked to take up the question of legal advice.
15 Let -- let me explain something else, what would happen if we
16 were hearing this case in The Hague, sir. You told us that you do not
17 have a lawyer -- you do have a lawyer, but, you know, it costs you -- he
18 would cost you (redacted) to bring him here for this purpose. We
19 would take an adjournment and ask the Registrar in The Hague to see if we
20 can't provide a lawyer for you who is paid for by the Court. Now we are
21 here. If we take an adjournment, there is no Registrar for you to
22 approach to ask for that kind of assistance. Or you can talk to them in
23 The Hague, but I'm not quite sure how efficient that is going to be.
24 Do you have any suggestion as to how you would like to proceed
25 from now on, sir? Because you -- I'm sure you do understand that we've
1 taken all the trouble to come here to hear you, and we would like to hear
2 you before we go back. And the question of looking and finding and
3 engaging a lawyer will take time, and we don't have much of that time
4 here in the remote location.
5 Do you have any suggestion as to what you would like to do? That
6 your lawyer is unaffordable to you.
7 THE WITNESS: [Interpretation] I asked -- I would ask for this
8 session to be adjourned and to give me some time. (redacted)
10 (redacted). So I would ask for an adjournment.
11 I might make a mistake. I might err and make a mistake that
12 would cost someone else or me.
13 JUDGE MOLOTO: How long an adjournment do you want?
14 THE WITNESS: [Interpretation] (redacted)
18 JUDGE MOLOTO: Sir, you're now putting the other issue before.
21 (redacted). They are still reading the letter,
22 and they will make their submissions later.
24 (redacted). We're trying to
25 resolve, at this point, the question of your lawyer. And I'm not quite
1 sure what your rights would be under the laws of --
2 [Trial Chamber confers]
3 JUDGE MOLOTO: -- under the laws of this country. But I've tried
4 to explain to you your rights under the laws of the ICTY. And we are
5 trying to expedite, sir, the hearing of this -- of your testimony and how
6 we can do it in the fairest way to you, you know. But we have only this
7 time that we are having here, and we are not here forever.
8 And I'm not sure whether you are able to get in touch, if we go
9 now for a break, whether you are able to get in touch by phone with your
10 lawyer and make sure he can be here, and, if he cannot be here, whether
11 you are prepared to answer questions. And to the extent that the Chamber
12 may be able to assist you, might be able to advise you as to as and when
13 a question arises which might incriminate you, we might say, Think
14 properly before you answer that question. But you would have to consent
15 to doing that -- that, to carry on testifying with -- under the advice of
16 the Chamber. The Chamber, meaning the three of us here.
17 THE WITNESS: [Interpretation] (redacted)
19 (redacted). And I hope you understand that, Your Honour.
20 JUDGE MOLOTO: We read the letter. (redacted)
23 THE WITNESS: [Interpretation] I'm saying this: I was there with
24 my wife, (redacted)
2 JUDGE MOLOTO: Okay. We have heard your submissions on that
4 Are there any submissions that the parties would like to make on
5 that point of -- of lawyer - that's what we were discussing - before we
6 take the break at twenty past?
7 Mr. Rogers.
8 MR. ROGERS: Your Honours, respectfully, the Prosecution's view
9 is that the need for a lawyer would only arise at such time as there
10 could be any risk of contempt. So presently, Prosecution doesn't see the
11 need for a lawyer to be present at the moment. (redacted)
14 (redacted). And I would suggest that
15 once it's been circulated, we proceed and see how we do, and see how far
16 we get. (redacted)
17 (redacted), then I'm sure that the Court will be
18 accommodating in that regard. He's told us that he is prepared to
19 testify (redacted)
21 JUDGE HALL: Sorry, Mr. Rogers, the -- you've indicated that
22 you anticipate the matter of a lawyer only arising in -- in -- in terms
23 of the possibility of contempt. But as the Presiding Judge has said, I
24 would have thought front and centre would have been the matter of the
25 possibility of self-incrimination, which the witness would have to be
1 warned, and that is -- that would be, I would have thought, the primary
2 need for him having a lawyer at his elbow.
3 MR. ROGERS: Your Honour, the only -- the time that the issue of
4 self-incrimination would arise that I could see --
5 MR. EMMERSON: Can we discuss this in the absence of the witness,
7 MR. ROGERS: Yes.
8 JUDGE MOLOTO: May the Chamber please move into open session.
9 [Trial Chamber confers]
10 JUDGE MOLOTO: He's got to go out in -- while we are in closed
11 session, you are right. Okay.
12 Witness, can you excuse us for a while, please.
13 [The witness stands down]
14 JUDGE MOLOTO: May we please move into open session now.
15 We stay in closed session.
16 MR. ROGERS: Your Honour, I think it would be better.
17 JUDGE MOLOTO: Okay. Let's stay in closed -- we'll stay in
18 closed session. Sorry about that. Thank you so much.
19 THE REGISTRAR: [Via videolink] Your Honours, we'll stay in closed
21 JUDGE MOLOTO: Thank you so much.
22 MR. ROGERS: I think I was trying to answer Judge Hall's
24 Your Honour, in our view, the need for a lawyer will only arise
25 at such time as any questions may come that could incriminate him in
1 (redacted). There's no suggestion, in -- in our submission
2 at this stage, certainly from the Prosecution's perspective, of seeking
3 to elicit evidence relating to the events for which he is alleged to have
4 witnessed, that there could be any question of self-incrimination in
5 relation to the events about which he is due to testify.
6 So there would appear to be no need for a lawyer. (redacted)
8 (redacted). And as nobody intends to go into
9 that, certainly not from my side - it may be that my learned friends will
10 wish to explore it, but from my perspective we would not wish to explore
11 that issue - then the question of self-incrimination will not arise.
12 In any event, under Rule 90(E), Your Honours can give him a
13 privilege in relation to that. That any questions for which he is
14 compelled to answer - Your Honours considering that the answers being
15 necessary for the fair disposal of the preceding - Your Honours can
16 pursuant to Rule 90(E) give him a privilege against that matter being
17 used against him in any subsequent proceedings, (redacted)
25 (redacted), I would
1 have thought Your Honours can give him a privilege against
2 self-incrimination in relation to that so that the -- any evidence that
3 was elicited could not be used against him. Thus, a lawyer, in fact,
4 pleasant though it would be to have another representative in this
5 building, would not be necessary.
6 JUDGE MOLOTO: Just before --
7 MR. GUY-SMITH: [Overlapping speakers] ...
8 JUDGE MOLOTO: Just before the Defence responds, let's me say
9 something which will further explain the presence of the people in the
10 dead zone. There -- there is the possibility that he -- the witness
11 might raise - and this is why they are here - might raise his protections
12 against -- under the (redacted) of the country, in which case, that --
13 that situation would then have to be referred to them for -- for
14 resolution and not to us.
15 Sitting where I am, I'm not sure that I'm able to identify that
16 point where his rights under the (redacted) might arise. In case
17 unassisted, he's not able to say himself, This is a (redacted)
18 under my country. And for that reason, I think that was the reason why a
19 legal advisor was also required, because it was anticipated that that
20 could happen. So there is a possibility of an overlap of jurisdictions
21 here depending on the ground of objection or the ground on which he
22 refuses to answer a question or questions.
23 I don't know whether you are in a position to address that in
24 your submission -- in a submission, that the presence of a lawyer is not
25 necessary right now.
1 MR. ROGERS: Your Honour, as we have (redacted)
2 court present, it may be helpful to hear what the procedure might be
3 should we get to a stage where he were to be compelled to answer a
4 question. Because what I'm hearing from Your Honour is, I don't know
5 quite whether he would to be entitled to representation on the question
6 of a contempt for failing to answer a question. As I understand the
7 (redacted), and I am assuming that we are
8 constituted under those proceedings otherwise the colleagues wouldn't be
9 here, this Court, because it is consisted of Judges, is competent to
10 determine whether a question should be answered pursuant to either
11 (redacted), I think, of the (redacted).
12 Once you have determined that it should be answered, you can tell
13 him it should be answered, at which point, in order to compel him to
14 answer, I think the judge who sits here would be the person to determine
15 whether or not the objection in terms of our jurisdiction having been
16 ruled upon, that it is a question that he should answer, Your Honours
17 tell him he should answer it, and as the learned Judge has heard the
18 basis and is satisfied, himself, that the question of contempt has been
19 properly dealt with and the question is a proper question and it should
20 be answered, he would then be in a position to compel the witness
21 himself, direct him to answer and/or advise him of his rights. But
22 I'm -- there I get a little bit misty, because I'm not quite sure how it
23 would -- how it would work -- [Overlapping speakers] ...
24 JUDGE MOLOTO: Yeah. Well, yeah. As you realise, the judge is
25 not here alone. He's here with counsel from the (redacted)
1 (redacted). And as I heard the explanation of the role they play here, it
2 is not for the judge to ... to talk -- to make interventions during these
3 proceedings. It is for the judge to sit in -- as a court to hear any
4 submissions relating to any issues that might arise under the
5 (redacted) of the country in a hearing that is not this hearing ...
6 country. He's put at our disposal in case there is anything that needs
7 any hearing by the local court to be done as speedily as possible without
8 having to go to another building and look for a judge there. That's why
9 he's here.
10 MR. ROGERS: I understand that, Your Honour.
11 JUDGE MOLOTO: Right.
12 MR. ROGERS: And I think that that is envisaged under the
13 (redacted), because if he wasn't here,
14 there would have to be a report to him. And as he's here, we can
15 circumvent that and move directly, I think, to deal with the issue that
16 would have been the subject of a report.
17 MR. EMMERSON: Before we start, if I may say so, hypothetically
18 seeking the advice and opinion of the body of assistant that sits to my
19 right, may we just establish where we're going with this. Obviously the
20 Defence are uncited so far as the (redacted) is concerned, so
21 we're not in a position to make submissions on that until we've seen the
22 material. I would not, certainly for my part, want the Defence to be
23 seen -- of Mr. Haradinaj to be seen to be in any way acquiescing with the
24 suggestion that a witness who has claimed and asserted his right to have
25 legal representation in a situation where there are serious questions of
1 whether his self-incrimination may be -- may arise. To then find
2 himself, so to speak, manoeuvred into a waiver of that which is not a
3 properly informed and voluntarily waiver but comes about as a result of
4 the fact that funds have not been put at the disposal of the witness in
5 order that he can have a lawyer to assist him. That would create a very
6 strange and unusual situation. (redacted)
20 So I wouldn't want there to be any suggestion that we are going
21 to, so to speak, be hampered in our cross-examination on a critical issue
22 with a witness who's already given false evidence on oath in the sort
23 time he's been in the box this morning, but that we were in any sense
24 acquiescing in any suggestion that we should be hampered as a result.
25 He's asserted a right to legal representation. It's most unfortunate,
1 especially since we know he's had a lawyer, that arrangements haven't
2 been made in advance. But, with respect, (redacted)
4 JUDGE MOLOTO: The net result of what you are saying,
5 Mr. Emmerson, is that, if I understand you well, and I understand you to
6 say if -- if, after asserting his need for a lawyer, he does not have a
7 lawyer, your suggestion is we pack and go home.
8 MR. EMMERSON: I'm making no suggestion at all as to what the
9 Trial Chamber should do. I'm simply saying --
10 JUDGE MOLOTO: Well, but that will be the result.
11 MR. EMMERSON: -- If I choose to. I am not going to say or do
12 anything which implies any restriction on my right properly to
13 cross-examine this witness on those questions about the extent to which
14 (redacted). I intend to do so, and
15 to do so with -- in full. And he's likely to be in the witness box for
16 approximately three days in cross-examination, so we need to have all of
17 that in mind when we consider the question of the way we proceed. I'm
18 certainly not suggesting that we pack our bags and go home. It's
19 entirely a matter for the Trial Chamber, to proceed, to give the
20 Prosecution a fair opportunity to have its evidence heard.
21 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
22 MR. GUY-SMITH: I -- just so there's no confusion, one of the
23 exceptions to Rule 90 is that of perjury. And since we've already had,
24 as has just been discussed, one example of that, I think it's kind of
25 important that we focus for the moment on really the -- where the
1 cross-examination could potentially go. And the cross-examination will,
2 as far as I'm concerned, revolve around many of the same issues --
3 JUDGE MOLOTO: -- which will require him to get legal advice.
4 MR. GUY-SMITH: That's correct.
5 JUDGE MOLOTO: Yeah. Quite clearly, this was -- from the side of
6 the Bench, I'm sure this was anticipated.
7 Mr. Harvey, you have anything to say?
8 MR. HARVEY: I just adopt fully everything that both Mr. Emmerson
9 and Mr. Guy-Smith have said.
10 JUDGE MOLOTO: We are long past the time for a break, by ten
11 minutes. Can we take the short break and come back -- we'll come back at
12 10 to 11 and carry on from there, okay?
13 Court adjourned.
16 JUDGE MOLOTO: Have the parties been able to read the document?
17 MR. EMMERSON: Your Honour, we have had an opportunity to see the
18 two separate documents. One of them is -- refers to it being page 1 of
19 2, and it appears that only page 1 of 2 has been provided, although, if
20 it follows the other document, what remains on the report would include a
21 (redacted) which appears on the other report but not on
22 the first one, and we know not what else. So it's an incomplete report.
23 But beyond that, we have no observations or submissions to make on these
24 issues at the present time.
25 JUDGE MOLOTO: Okay. Do you have anything to say on that,
1 Mr. Rogers?
2 MR. ROGERS: Your Honour, no. (redacted)
5 JUDGE MOLOTO: Okay.
6 Now, going back to the question of legal representation -- I
7 don't know whether -- maybe we should say this in the presence of the
9 May the witness please be brought in.
10 Are we in closed session?
11 Okay. May the witness please be brought in.
12 [The witness entered court]
13 JUDGE MOLOTO: Thank you very much.
14 The issue of a lawyer for you, Mr. Witness. And I would like to
15 say this and tell you and the rest of the people what the Chamber is
16 thinking about it. We indicated before the break that if we were in
17 The Hague, we -- you -- we would refer you to Registry and Registry would
18 decide whether to give you a lawyer to help you. But this would be a
19 lawyer not of your choice. This would be a lawyer that are you given
20 for -- to by the Tribunal and the Tribunal would pay for it. We are
21 presently trying to communicate with the Registry in The Hague to find
22 out whether this can be done at this distance.
23 Now, given the distance, obviously you -- if that does happen,
24 you're going to have to communicate with this lawyer by cell phone and he
25 will probably be allowed to sit in court in The Hague and he would be
1 able to intervene as and when the need arises.
2 Now, that is the procedure that we would put before you, and you
3 have to say whether you are accepting that. And if you do not accept
4 that, we are also trying to find out the availability of your local
5 lawyer whose name you have provided not in these proceedings today but in
6 previous filings, who we have been told he's not retained for today, and
7 I would image that that's the lawyer you would instruct, were you to have
8 funds. Am I right?
9 THE WITNESS: [Interpretation] Yes. Yes.
10 JUDGE MOLOTO: Those are the two avenues that we are exploring.
11 Of course, just checking on his availability, and then, of course, a
12 question of funding will be decided later.
13 That's where we are. And it does seem as if until we hear from
14 The Hague or from your lawyer locally here, there isn't much we can do,
15 unless the parties are able to indicate what it is that could be done in
16 the interim.
17 Yes, Mr. ...
18 MR. ROGERS: Your Honour, my respectful submission is that the
19 right to the lawyer does not effectively crystallise until such time as a
20 question is asked which potentially raises the right or privilege against
21 self-incrimination for which he would need advice on Your Honours'
22 thinking. That means we should be able to start examination-in-chief and
23 at least begin with some of the evidence and allow the procedures that
24 Your Honours have put into place to take effect so that we don't lose any
25 of the available time today.
1 I see Mr. Emmerson nodding in agreement.
2 MR. EMMERSON: [Microphone not activated] ... yes --
3 JUDGE MOLOTO: I see Mr. Guy-Smith and Mr. Harvey are ...
4 MR. HARVEY: -- nodding as well.
5 MR. GUY-SMITH: Yes. Under the given circumstances, I would
7 JUDGE MOLOTO: Okay.
8 JUDGE HALL: I have one small question, though, and obviously
9 what you say makes eminent sense, but having regard to what the witness
10 himself has raised (redacted), notwithstanding your
11 impression as you have articulated and our own impression as the
12 Presiding Judge has which has inferentially been adopted by the other
13 side, need we have any reservations about proceeding, as we would all
14 wish to do, in the absence of any representations which counsel on behalf
15 of the witness may have wished to -- to raise?
16 It's -- it's something that's just -- it's a somewhat inchoate
17 thought, but I'm just -- there's just something nagging in the back of my
19 Do you have a view on this?
20 MR. ROGERS: Your Honour, yes, I think we can proceed. All of
21 the parties are in agreement that we should. (redacted)
1 (redacted), then maybe it
2 would be sufficient for Your Honours to be troubled about whether it's
3 appropriate to proceed. But the evidence appears, universally, to be
4 accepted as insufficient on that purposes -- for that purpose, and we
5 should proceed. I don't know how far we will get, but at least we might
7 JUDGE MOLOTO: Can we -- can I just be reminded: What's the date
8 of that (redacted) --
9 MR. EMMERSON: Might the witness just remove his earphones for a
11 MR. GUY-SMITH: I don't think that would be sufficient. The
12 witness, as a matter of fact --
13 JUDGE MOLOTO: -- speaks English.
16 MR. EMMERSON: Might he withdraw then, please.
17 JUDGE MOLOTO: Okay.
18 Mr. Witness, can you please excuse us for a moment.
19 [The witness stands down]
20 JUDGE MOLOTO: I had asked the question: What is the date of the
21 that communication?
22 MR. ROGERS: 5th of April.
23 JUDGE MOLOTO: Say again?
24 MR. ROGERS: 5 April.
25 MR. EMMERSON: Your Honour, I simply wanted to -- and it may be
1 entirely obvious from a reading of the report, but the one which is
2 addressed to the witness himself, which, of course, has a redaction
3 beneath it so we don't know what it says, but the Trial Chamber's seen
4 it, refers to (redacted)
7 (redacted) --
8 MR. ROGERS: No. (redacted).
9 MR. EMMERSON: I see. Then, (redacted)
13 (redacted) - I seem to think
14 it's right that that should be on the record - together with the fact
15 that it's a little difficult for us to follow what this letter was for
16 because of the redaction, in other words to whom it was addressed, but
17 there is a sentence in it that says: "Please contact me should you
18 require further information."
19 MR. ROGERS: I don't think Mr. Emmerson can give evidence about
23 (redacted) -- [Overlapping speakers] ...
24 MR. GUY-SMITH: Well, since Mr. Rogers has just suggested that
1 (redacted). It's clear --
2 MR. ROGERS: All right.
3 MR. GUY-SMITH: -- (redacted) for some reasons.
4 It's --
5 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
6 Thank you very much, Mr. Rogers, on that point.
7 MR. ROGERS: We're content that the sauce for the goose is sauce
8 for the gander.
9 JUDGE MOLOTO: Indeed, sir. Thank you so much.
10 Just re-call the witness in and just ask you to start leading.
11 May the witness please come in.
12 [The witness entered court]
13 JUDGE MOLOTO: Witness, we're going to proceed to take your
14 testimony. You -- we have heard what you said, (redacted)
17 (redacted). And the Chamber is going to be
18 vigilant to see where you might need legal advice and try to raise the
19 issue with you for that.
20 But in the interests of expeditiousness, we feel that we must try
21 now to take the evidence.
22 Mr. Rogers.
23 MR. ROGERS: Thank you.
24 Could the pseudonym sheet -- whilst we're -- I think we're still
25 in closed session. Could the pseudonym sheet, which is 03083, be given,
1 shown to the witness, please, so that he can confirm his details.
2 03083; that's the e-court reference.
3 JUDGE MOLOTO: We don't seem to have it on our pile, what you
4 gave us as -- in advance.
5 MR. ROGERS: It should be in there, Your Honour.
6 JUDGE MOLOTO: Okay.
7 MR. ROGERS: I'm sorry if it isn't. It's towards the back.
9 JUDGE MOLOTO: Okay. I beg your pardon.
10 MR. ROGERS: [Microphone not activated] Sorry, Your Honour. My
12 Examination by Mr. Rogers:
13 Q. Mr. Witness, can you just confirm, please, that you can see the
14 pseudonym sheet with the pseudonym Witness 80 on it, and your name, your
15 father's name, your date of birth, and your place of birth.
16 Can you confirm that the details on that are true, please.
17 A. Yes.
18 Q. Thank you.
19 MR. ROGERS: And, Your Honours, could that be an exhibit under
20 seal, please, with the next exhibit number.
21 JUDGE MOLOTO: The document is admitted into evidence. May it
22 please be given an exhibit number, under seal.
23 THE REGISTRAR: Your Honour, 65 ter 03083 shall be assigned
24 Exhibit P528, under seal. Thank you.
25 JUDGE MOLOTO: 528.
1 MR. ROGERS: Can we move into open session.
2 Q. Witness, can I just confirm, please, as we see on the pseudonym
3 sheet --
4 JUDGE MOLOTO: Before you confirm -- do you want to confirm
5 before we move in? Or ...
6 MR. ROGERS: Yes, before we move in. Yes.
7 JUDGE MOLOTO: Oh, okay.
8 MR. ROGERS:
9 Q. (redacted)
11 Page 2306 redacted.
5 JUDGE MOLOTO: Well -- well, okay. There is -- there is --
6 [Overlapping speakers] ...
7 MR. GUY-SMITH: Well, if there wasn't a leading question before,
8 there's certainly now. Mr. Rogers is now giving evidence.
9 JUDGE MOLOTO: That is now -- [Overlapping speakers] ...
10 MR. GUY-SMITH: He was asked prior to these proceedings to engage
11 in a certain level of courtesy and a certain level of appropriateness
12 with regard to leading questions. It was made very clear to him. And
13 for him to take the position that he's taken right now, I take umbrage
15 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
16 Yes, Mr. Rogers, both occasions you were leading. And if
17 your learned friend had mentioned to you earlier that there should be
18 absolutely no leading in this matter, which in fact he doesn't need to
19 tell you, then there should be no leading.
20 If you want to deal with that issue and you want to deal with it
21 in closed session, deal with it. But deal with it without leading. And
22 then we go into open session.
23 MR. ROGERS: All right. Perhaps I'll try to deal with it in
24 another way and we can go back into -- I think, into open session.
25 JUDGE MOLOTO: I thought you said you are dealing with it now,
1 before we go into open session.
2 MR. ROGERS: No.
3 JUDGE MOLOTO: May the Chamber please move into open session.
4 [Open session]
5 THE REGISTRAR: [Via videolink] Your Honours, we are in open
7 JUDGE MOLOTO: I beg your pardon. We are -- Mr. Court Officer
8 here is still ...
9 You may proceed, Mr. Rogers.
10 MR. ROGERS: Thank you, Your Honour.
11 Q. Mr. Witness, in 1998, were you the supporter of any particular
12 legal -- particular political party?
13 A. Yes.
14 Q. Can you tell us which party that was, please.
15 A. Democratic League of Kosovo.
16 Q. Can you tell us, please, who the leader of that party was.
17 A. The deceased Ibrahim Rugova.
18 Q. Can you tell us, please, when you approximately joined that
20 A. In 1991.
21 Q. How active were you in the party?
22 A. I was as active as all the others. I gave my contribution to it,
23 to my -- depending on my abilities.
3 Q. And who in the village were the leaders of that particular
4 political movement?
5 A. I don't understand very well your question.
8 JUDGE MOLOTO: Can we have a redaction there.
9 THE WITNESS: [Interpretation] Yes, there was. There was.
10 MR. ROGERS:
11 Q. And can you tell us --
12 MR. ROGERS: The answer was "Yes, there was" to my question
13 relating to whether there was a local leadership.
14 Can you tell us, please, the names of the local leaders in your
15 village of the party?
16 JUDGE MOLOTO: Are you happy to get an answer in open session to
17 that question?
18 MR. ROGERS: Your Honour --
19 THE WITNESS: [No interpretation]
20 MR. ROGERS: Your Honour, perhaps it is better we go into private
21 session for that answer.
22 JUDGE MOLOTO: The witness said something which --
23 THE INTERPRETER: "The chairman was ..."
24 JUDGE MOLOTO: Are we in private session?
25 MR. ROGERS: Your Honour, we should go into private session.
1 JUDGE MOLOTO: We're waiting to go into private session.
2 [Private session]
11 Pages 2311-2312 redacted. Private session.
4 [Closed session] [Confidentiality partially lifted by order of the Chamber]
11 Pages 2314-2316 redacted. Closed session.
20 MR. ROGERS:
21 Q. Witness, in 1998, had you heard of an organisation known as the
22 KLA, or UCK?
23 A. Yes.
24 Q. And how did you come to know of that organisation?
25 A. With their appearance, we could see them in the village, when
1 they moved around. And with the beginning of the war in Drenica, we saw
2 that there were people ...
3 Q. And in relation to your village, when was the first time that you
4 saw that there were such people from the KLA?
5 A. In May.
6 Q. Was that something you experienced yourself or something you
7 heard about?
8 A. No, I saw them myself.
9 Q. Where did you see them?
10 A. In my village.
11 Q. And what happened when you saw them? What was happening?
12 A. They were putting up resistance against the enemy.
13 Q. Who was the enemy?
14 A. Serbia.
15 Q. How were they putting up resistance? In what ways?
16 A. Forces were coming to attack the village; a large number of
18 Q. And in relation to this first time that you saw the KLA, where
19 were they and what were they doing?
20 A. They were preparing to defend the village.
21 Q. Did you have any direct contact yourself with them? Did you
22 speak to anybody?
23 A. Yes.
24 Q. Can you tell us who you spoke to, please.
25 A. I didn't know them.
1 Q. Where did you speak to them? And what about?
2 A. At my house.
3 Q. What did you speak about? Why had they come to your house?
4 A. They came to demand my weapons that I had had since 1986.
5 Q. How do you know that they were members of the KLA?
6 A. They had their emblems.
7 Q. Was there anything else about their dress that you noticed?
8 A. They had camouflage uniforms on.
9 Q. Are you able to tell us or describe at all what the emblem looked
11 A. It was red and white, there was an eagle, and the letters U-C-K.
12 I had the same myself.
13 Q. How were you able to -- in what --
14 THE INTERPRETER: Interpreter's correction: The witness said
15 "red and black," not "black and white."
16 MR. ROGERS:
17 Q. In what circumstances did you have the same uniform?
18 A. When I joined the KLA myself.
19 Q. And when did you join the KLA yourself?
20 A. In May.
21 Q. In which year?
22 A. At the beginning of the war, in 1998.
23 Q. And who, if anybody, recruited you into the KLA?
24 A. I joined, myself. No one helped me join in.
25 Q. And where were you based when you joined the KLA?
1 A. In my village, at the beginning.
2 Q. You were telling us about the KLA coming to your house and asking
3 for weapons. What was your response to that when they came and asked for
5 A. I gave them the weapons. I handed them over.
6 Q. And are you able to help with, please, in what way or what manner
7 these men or persons asked you for the weapons?
8 A. They told me that they had an order for me to hand over their
9 weapons to them.
10 Q. Did they tell you who the order was from?
11 A. From above, the staff. Somebody from the staff had given the
13 Q. Did you see the order at all?
14 A. There were no orders at that time. They just said orally, There
15 is an order.
16 Q. And the weapons that you had handed over, what type of weapons
17 were they?
18 A. A Kalashnikov, a Yugoslav make; a pistol, TT pistol; and a long
19 rifle. It belonged to my father.
20 Q. In relation to the Kalashnikov, did you know how to use that
22 A. Yes. I completed the military service in former Yugoslavia, and
23 that's where I learned.
9 [Closed session]
25 [Open session]
1 THE REGISTRAR: [Via videolink] Your Honours, we are in open
3 MR. ROGERS:
4 Q. Mr. Witness, can you tell us, please, in relation to the attack
5 on your village, how it -- how it happened and what you were doing during
6 the course of that attack? When it first started, what happened?
7 A. I took my family when the Serbs started the attack on our
8 village. I was not at home when this attack started. I was at my
9 nephew's home.
10 Q. And are you able to help us at all with what caused the attack?
11 Do you know why it was that the Serb forces attacked your village at that
13 A. Well, all the villages, all the places in Kosovo, were being
14 attacked by the Serbs, and our village was a target as well in Kosovo.
15 Well, the Serbs hated us. That's why they attacked. But this was not --
16 but this was not -- but this was not just our village. It's not that
17 they targeted us especially. It was what happened elsewhere as well.
18 Q. During the course of the attack, what did you do?
19 A. I withdrew my family, my wife and children, who, because of the
20 traumas that she suffered during that attack, she's not alive anymore;
21 she died.
22 Q. Who -- who are you referring to, please?
23 A. You asked me about the attack, didn't you?
24 Q. You told us that somebody died as a result of the traumas from
25 the attack. I just wanted to clarify who you were referring to, please.
1 JUDGE MOLOTO: He told us it was his wife.
2 MR. ROGERS: Oh, forgive me.
3 THE WITNESS: [Interpretation] My wife.
4 MR. ROGERS:
5 Q. Was that as a direct result of the attack in terms of injuries
6 received, or were there any other causes for that death?
7 A. She never was ill before.
8 Q. You told us that your family was taken away, or you took away
9 your family from the village. Did you return to the village at any time
10 during the course of the attack, which you've told us lasted at least two
11 days, or two days.
12 Did you go back at all after you had removed your family?
13 A. Yes. I returned immediately.
14 Q. What did you do when you returned?
15 A. I did not have my own weapons or anything else, but I joined.
16 Q. And what -- what did you join?
17 A. In the village. I joined the other people who had -- who were
18 defending the village.
19 Q. And what did you do in the remaining time you were in the village
20 whilst the attack was ongoing?
21 A. I had the task to protect the village.
22 Q. Who gave you that task?
23 A. I gave myself that task. Because not joining would have been
24 risky for me.
25 Q. When you say "not joining," what -- what do you mean?
1 Not joining what?
2 A. The KLA.
3 Q. When you said that would have -- not joining would have been
4 risky for you, why -- why would it have been risky for you?
5 A. At the time, when these people, these young men, appeared, we
6 were not properly informed. We didn't know that they exist -- they
8 Q. What do you mean that you weren't properly informed that they
9 existed? What do you mean by "they"? Who is the "they" that you're
10 referring to?
11 A. The KLA. We were not aware that the KLA existed.
12 Q. What -- what were the risks that you understood -- what did you
13 understand the risks to be if you did not join the KLA?
14 A. There would be consequences if I did not join the KLA. It would
15 be a catastrophe. I could be killed one day.
16 Q. [Previous translation continues] ... did you think that?
17 A. Because they sought support.
18 Q. But why did you think that there were would be a risk to you if
19 you did not join it? What were the reasons for thinking that?
20 A. The reason was because I belonged to a party that they didn't
21 even want to hear their name.
22 Q. Why did you think there was a risk to you because you belonged to
23 a different party? Was there anything concrete or that you had seen or
24 heard that made you think that there was a risk to you if you did not
1 A. The problem was that I belonged to that party that they didn't
2 like. They wanted to have the people under their control, to be -- to
3 command them and to do everything, and that party would not allow that.
4 Q. How did you know that they wanted to have you under their
6 A. We knew because they threatened us.
7 Q. When did they threaten you?
8 A. At the beginning of the war. In 1998.
9 Q. Was this -- how were those threats communicated?
10 A. Example: If I didn't agree with them, if we didn't obey the
11 orders, they would kill us, or they would do short work of us.
12 Q. Was there any time when you heard that being said? [Microphone
13 not activated] ...
14 A. Yes.
15 Q. Can you tell us about where that was, please; and, if you can,
16 who was saying it?
17 A. KLA people. They asked me to obey some of their orders, which I
18 refused to. And to this day I would refuse.
19 Q. When -- can you tell us, please, when it was that they asked you
20 to obey some orders and you refused?
21 A. In 1998. It was in May.
22 Q. Was it before or after the attack on your village, or during?
23 A. It was during the time of the attack.
24 Q. What was said to you specifically and by whom during that attack?
25 What orders were you given that you refused to obey?
1 A. The order was to go and arrest some co-villagers of mine whom,
2 because they were my co-villagers, but even if they were not my
3 co-villagers, I wouldn't carry out that order.
4 Q. Can you tell us, please, who it was that gave you that order.
5 A. From the staff. Some people had their connections in the
7 Q. And do you know who was on the staff and where it was located?
8 Who -- who was on this staff of the KLA?
9 A. The Main Staff of the KLA was located in Jabllanice.
10 Q. Are you able to just tell us any other villages very nearby to
11 Jabllanice just so that we can orientate which Jabllanice you're
12 referring to? Which other villages are very near to the Jabllanice where
13 you say the staff was?
16 Q. Do you know -- have you heard of a village called Zhabel?
17 A. Yes, I've heard of Zhabel.
18 Q. Are you able to help with how far that village is from
20 A. I would say some four or five kilometres.
21 Q. Can you tell us, did you know anybody in the village of
23 A. Yes, I know many people in Jabllanice. I had links, connections
24 with them before the war, but even after the war. There are good people
25 living in Jabllanice. There are good men there.
1 Q. Could you tell us who the leadership on the staff of the KLA were
2 in Jabllanice, please.
3 A. Yes. There were many people there. The first among them was
4 Myrt Zeneli, Sadri [phoen] Zeneli. They were the first members, but they
5 were killed. They were very good people.
6 Q. And can you tell us, please, who replaced them. Who became the
8 A. Then after them, the General Staff.
9 Q. Who was on the General Staff?
10 A. You are asking me about Jabllanice?
11 Q. [Previous translation continues] ... in May 1998, in particular.
12 Who was -- who were the leadership of the KLA in Jabllanice in
13 nineteen -- May 1998? I'd like you to tell me all of them.
14 A. The main person was Lahi Brahimaj and his brother, Nazmi.
15 Alush Agushi. Naser Ibrahimaj also.
16 Q. In relation to Lahi Brahimaj, did -- was he somebody that you
17 knew before the war or after the war, or only during the war?
18 A. Whom are you asking me about? I don't know.
19 Q. Lahi Brahimaj.
20 A. I used to know him before the war.
21 Q. And how did you know him before the war?
24 him before.
25 JUDGE MOLOTO: Mr. Rogers, if you can look for a convenient
2 MR. ROGERS: [Overlapping speakers] ... now.
3 JUDGE MOLOTO: That being the case, we'll take a break and come
4 back at about twenty to 1.00.
5 Court adjourned.
7 [The witness stands down]
9 JUDGE MOLOTO: May the Chamber please move into closed session.
10 [Closed session]
19 [Open session]
20 THE REGISTRAR: [Via videolink] Your Honours, we are in open
22 JUDGE MOLOTO: Yes, Mr. Rogers.
23 MR. ROGERS:
24 Q. Witness, you were telling us before the break about the
25 leadership of the KLA in Jabllanice, and you referred to Lahi Brahimaj
1 and Nazmi Brahimaj. And you also indicated that -- and I didn't get the
2 words down exactly, so it may be my learned friends who have to correct
3 me, but something to the words of, I used to get along with
4 Lahi Brahimaj. What is the -- is that right, that you said "I used to
5 get along with Lahi Brahimaj"? Just yes or no.
6 MR. HARVEY: I had good relations with him before.
7 MR. ROGERS: Okay. Thank you. Thank you, Mr. Harvey. I'm very
8 grateful. A better and more accurate note than I could take.
9 Q. "I used to have good relations with him before."
10 Did that position change, having good relations with him?
11 A. Please ask your questions directly of -- to me. I don't like you
12 to beat about the bush.
13 Q. I have certain rules as to the questions I must ask, Mr. Witness.
14 So if you would please just ask [sic] the question I asked you. Did
15 you -- did that position change, that you had good relations with Lahi?
16 Did it change; and, if so, how?
17 A. I said even earlier I am not in a very good condition. I really
18 apologise for asking you to put the questions directly to me.
19 Q. Did your relationship with Lahi Brahimaj change; and, if so, why?
20 A. Yes. Before the war, I had good relations with him. When the
21 Serbs drove me away from my country, Lahi Brahimaj had an agency in
22 Gjakove, and he sought to drive me away from Kosova. This was in 1992.
23 He had a tourist agency. I had good relations with him. But our
24 relations deteriorated with the onset of the war.
25 Q. Why did they deteriorate --
1 THE INTERPRETER: Correction. He said: "Lahi Brahimaj helped me
2 to get away, with this agency."
3 MR. ROGERS:
4 Q. During the war, you said, the relationship deteriorated. What
5 happened in the war to make that relationship deteriorate?
6 A. I don't know. But I was once in Jabllanice. I was there with a
7 friend of mine, and Lahi appeared before me and said, You are an
8 undesirable person. Better not come to Jabllanice.
9 I don't know why, but these words he said to me.
10 Q. When was that?
11 A. Before the war started. Maybe one month before the war.
14 MR. ROGERS: Forgive me, Your Honour. Could that be redacted.
15 Q. Around the time of the attack on your village, were you ever in
16 Jabllanice around that time?
17 A. You're asking me at the war time? During the war time?
18 Q. Yes. During -- during the war time, around the time of the
19 attack on your village, which you've told us was at a certain -- in a
20 certain month --
21 A. I was there several times.
22 Q. Okay. Could you tell us about the first of those times when you
23 were in Jabllanice. Why were you there?
24 A. I was called to go there, to report there.
25 Q. Who called you to go there?
1 A. Lahi Brahimaj.
2 Q. How were you called to go there? In what way?
3 A. I was there with a relative of mine whose name I wouldn't mention
4 because I don't want to cause any harm to him. I was there related to an
5 armament issue.
6 Q. How did you come to be there? Did you go on your own or with
7 someone else? Did you go voluntarily? Or how was it you became to be
9 JUDGE MOLOTO: He had been called.
10 MR. ROGERS: Yes. I just want to establish how -- he was called,
11 but how did he get there, and was it voluntarily.
12 THE WITNESS: [Interpretation] For the first time, I met him by
13 accident, and they called me for an informative talk, they said.
14 MR. ROGERS:
15 Q. Where was it that you met Lahi Brahimaj by accident?
17 A. In front of his house, at his tower. That informative talk, as
18 they described, I remember during the time of the Serbs, they usually
19 asked us for such information to give them information about weapons and
20 so on and, so I thought that this informative talk had to do also with
21 Serbia this time.
22 Q. Where was Lahi Brahimaj's house? Which village?
23 A. In Jabllanice.
24 Q. [Previous translation continued] ...
25 THE INTERPRETER: Microphone, please.
1 MR. ROGERS: Sorry, my microphone is on.
2 Can interpreters hear?
3 THE INTERPRETER: Now yes.
4 MR. ROGERS:
5 Q. The informative talk, you say, was mentioned outside of Lahi's
6 house. Where, if anywhere, did that informative talk take place?
7 A. This took place in front of his house in that village. It was
8 Nazmi, his brother, Lahi. Lahi saw me by accident when I was passing by,
11 Q. No.
12 MR. ROGERS: It needs to be redacted. Thank you.
13 JUDGE MOLOTO: That name be redacted, please, Mr. Registrar.
14 Yes, you may proceed, Mr. ... please proceed.
15 A. Is this person said to his brother Nazmi, Look after him. Deal
16 with him.
17 They asked me to render account about the weapons that they had
18 purchased -- we had purchased with our own money as early as 1986, 1987,
19 up to the years 1990s, and to show them where we had hidden these
21 Q. And when -- when did this conversation take place?
22 A. It was in May, I think, with the beginning of the war. After our
23 village was taken, or fell.
24 Q. What -- what did you say in response?
25 A. I said, and that person who was with me, a relative of mine, he
1 also said that he was in jail. He meant me. He was beaten by the Serbs.
2 And he never said a word about these weapons, so he is not going to say
3 anything to you either.
4 Q. And how did that conversation end? What happened at the end of
6 A. So they didn't do anything to me because I was all the time
7 escorted. They had other motives, but ...
8 Q. Tell us about the next time that you were in Jabllanice village,
9 when you saw -- well, what were the circumstances of the next time that
10 you were in the village?
11 A. I was there for the second time (redacted)
13 Q. Tell us -- tell us how (redacted), please. What
16 Q. And when did that happen? When were you taken?
17 A. After our village fell. The Serbs had retreated from the
18 village. And we went now and again to our homes for a while.
19 Q. And what happened? Who -- who came to your home?
20 A. There was a car with some soldiers in it (redacted)
22 Q. Were you on your own or with anyone else?
23 A. I was by myself.
1 Q. And where was the headquarters? Whereabouts in the village?
2 A. It was at the end of the cemetery.
3 Q. Are you able to help with -- with whether there is a road running
4 through the village at all? Jabllanice?
5 A. Yes. There is the road that connects Jabllanice with Zhabel,
6 Gllogjan, (redacted).
7 Q. In relation to that road, if you're travelling in the direction
8 of Zhabel, are you able to help with whether this place -- where it was
9 in relation to the road, which side of the road it was on? If you're
10 travelling towards Zhabel, was it on the right side of the road or the
11 left side of the road?
12 JUDGE MOLOTO: What place is this we're talking about?
13 MR. ROGERS: The headquarters. The description the witness has
14 referred to as the headquarters.
15 JUDGE MOLOTO: The thing is, I thought I heard him say that the
16 headquarters were at a grave-site. I'm I -- did I hear correctly?
17 MR. ROGERS: He said it was near to the cemetery.
18 JUDGE MOLOTO: Near to the cemetery. Something like that --
19 MR. HARVEY: At the end of the cemetery.
20 MR. ROGERS: At the end of the cemetery.
21 JUDGE MOLOTO: And you see now, and you introduce a road. You're
22 not carrying on with the cemetery for us to get a relationship between
23 this place and the cemetery. And I don't know whether the road is near
24 the cemetery or ... you see?
25 MR. ROGERS: Your Honour, yes. I'll -- [Overlapping speakers]
2 JUDGE MOLOTO: I think --
3 MR. ROGERS: If I may --
4 JUDGE MOLOTO: I think we must following what the witness is
5 saying and develop on what he is saying, rather than introduce things he
6 hasn't testified about just yet.
7 MR. ROGERS: I'm in Your Honours' hands. If you would rather me
8 ask the question about the cemetery, then I'll ask a question about the
9 cemetery, but it may --
10 JUDGE MOLOTO: This is the problem. Well, the thing is, when you
11 introduce the road and he has just talked about a cemetery, I'm not --
12 know -- I don't -- I'm not quite sure what you're talking about and --
13 because you're deviating from what he's telling us.
14 MR. ROGERS: May I just be allowed to just develop it?
15 JUDGE MOLOTO: Develop your point, Mr. Rogers.
16 MR. ROGERS: Thank you.
17 Q. Is -- I'll ask you about the cemetery in a minute. But, first of
18 all, is -- is the building that you referred to as the headquarters on
19 the right side or the left side of the road as you head towards Zhabel?
20 A. The building of the headquarters is on the right-hand side.
21 Q. And approximately how close to the cemetery is it? Are you able
22 to help with distance at all, in terms of metres or walking distance?
23 A. The road is between them. About ten metres. Ten to 15 metres.
24 Q. And at this place where there is the headquarters you've
25 described, can you tell us a little bit more about the layout of the
1 building that you've described as the headquarters? First of all, how do
2 you -- how do you gain entrance to it?
3 A. You mean the headquarters, yes?
4 Q. Yes. The building we've just been talking about on the road to
5 Zhabel, on the right-hand side, that building, how do you get into it?
6 A. There were doors to the building, gates, large wooden gates. And
7 there was a building, a long building, one-storey house, before you got
8 to the other house.
9 Q. So you've told us there was one a long-storey [sic] one -- one
10 building, long-storey [sic] house before you got to the other house. So
11 we take it that there were two --
12 JUDGE MOLOTO: Is it a long-storey or one-storey house?
13 MR. ROGERS: Sorry. A long, one-storey house.
14 Q. A long, one-storey house before you get to the other building.
15 So there were two buildings in this area, in what you've described as the
16 headquarters; is that right?
17 A. Not two buildings. The first building was a hospital. If you
18 mean the first building, that one was the hospital.
19 Q. Where is that building in relation to the -- the place you've
20 described as the headquarters? The hospital, how close is it to the
21 place you've described as the headquarters?
22 A. The hospital was about 50 metres from the headquarters.
23 Q. Okay. Now I just want to focus, if you would, please, on the
24 headquarters place that you've described as the headquarters. You've
25 told us of the gates and the long, one-storey building. Can you
1 describe, please, as you enter through the gates, where that long
2 one-storey building is. As you go through the gates, is it to the left,
3 to the right, in front of you, or what?
4 A. On the left.
5 Q. And are you able to help with the -- the premises themselves?
6 Are they entirely open? Were there any walls or fences or other
7 enclosures of the premises? And if so, can you describe them? Of the
8 headquarters' premises.
9 A. Do you mean the long building?
10 Q. Yes. Tell me about the long building. But I want to also
11 understand whether there were any walls or fences or other parameter
12 markings of the premises you've described as the headquarters.
13 A. The wall was next to the road that takes you to Zhabel, a long
14 wall. On the inside, there was no wall. There were some poles. And
15 then it was open.
16 Q. And the long -- the long, one-storey building, was it separate
17 from the wall? Where was it in relation to the wall?
18 A. It was separate from the wall.
19 Q. And how close to it was it?
20 A. Between the wall and what?
21 Q. Well, you've described a wall, and what I'm trying to find out is
22 whether the building was attached to the wall or separated from the wall.
23 So can you help me with that, please. The long, one-storey
24 building, was it part of the wall or separate from the wall?
25 A. Do you mean the headquarters, or what do you mean?
1 Q. Yes, the headquarters' buildings that you're describing, the
2 long, one-storey building. I want to understand: Is that part of the
3 headquarters? Let's start there. The long, one-storey building, is that
4 part of the headquarters you're describing?
5 A. Yes.
6 Q. And that's where you were taken -- that's where you went. (redacted)
7 (redacted) you were taken to this headquarters building;
9 A. Yes, yes.
10 Q. Now, in relation to that one long-storey [sic] building that's
11 part of the headquarters, is it separate from the wall, or is it attached
12 to the wall? Is the wall part of it? The wall along the road that
13 you've described, is it part of that building, or is the building
14 separated from it?
15 A. Are you talking about the headquarters building?
16 Q. Yes.
17 A. It's separate.
18 Q. Were there any other buildings in -- in this place that you've
19 described as the headquarters that you were taken to?
20 A. There was another house there.
21 Q. Can you describe the other house there, please. What did it look
23 A. It was inside the yard of that long building.
24 Q. Can you describe it, please. What does it look like?
25 A. It was square in shape, red bricks. It was one storey as well.
1 Q. Can you tell us whether it had rooms?
2 A. Yes. About three rooms, I think.
3 Q. And did it have any other places, any other places like rooms in
5 A. Not inside. There were three bedrooms and there was a cellar.
24 Q. When you were there, did you see any other people there?
25 A. Yes. There were many people there. There were soldiers, there
1 were some good lads, soldiers, who were all for driving the occupier out.
2 Q. What about other people? You've told us about soldiers. What
3 about any other people that were in that -- in those premises, at that
15 A. The first case I know about is a man from Gergoc village. His
16 name was Jah Bushati. He was there. He had been taken because he
17 allegedly was a collaborator of Serbia. And he had been beaten so badly
18 that he could not stand.
19 Q. Did you see -- you've referred to him "beaten so badly he could
20 not stand." Did you see who was doing the beating to that man,
21 Jah Bushati?
22 A. There were certain people, but I can't tell you who they were
23 because they had pseudonyms. I don't know their real names.
24 Q. Well, can you tell us some of their pseudonyms, please, of the
1 A. Bandashi, Rusi. These were the people.
2 Q. And on how many occasions did you see Jah Bushati being beaten?
3 A. I saw Jah only once.
4 Q. And are you able to help, please, with the approximate date of
5 when you saw that beating?
6 A. It was in May, about the 20th of May, 25th of May. Around that
8 Q. Around that time, did you see anybody else being beaten? You've
9 told us about Jah. Was there anybody else that you saw that happening
11 A. I saw Jah when he was beaten, and then he was released and he
12 became a good soldier, as they called him, and he obeyed the orders of
13 the people who gave him orders.
14 I heard, there, when he had an order to attack some brothers from
15 Baran --
16 Q. Witness, I didn't ask you about him. I asked you about whether
17 you saw anybody else being beaten.
18 Would you answer my question, please.
19 A. I saw him. So, for the time I was there, I saw Jah.
11 Pages 2342-2351 redacted.
15 [Private session] [Confidentiality partially lifted by order of the Chamber]
11 Pages 2353 redacted. Private session.
17 A. Yes. There was also Skender Kuqi there.
18 Q. How do you know Skender Kuqi?
21 Q. And was he already there when you arrived, or did he arrive after
22 you arrived?
23 A. He came after me.
24 Q. Can you tell us about how he came and what happened to him,
25 please. First of all, how did he arrive?
1 A. He came with his own car. Two persons that I don't know abducted
2 him. He was at his own cafe in Zahaq, and they brought him with his own
3 car in the boot of the car.
4 Q. Did you see him in the boot?
5 A. I saw it when they brought him out of the boot.
6 Q. After they brought him out of the boot, what happened to him?
7 A. They accused him of being a collaborator of the Serbs. They
8 accused of having links with them. But, as far as I knew him, as a
9 teacher, he never had such links with them.
10 Q. Who -- who made those accusations that he was a collaborator of
11 the Serbs? Who said that?
12 A. Lahi and Nazmi.
13 Q. And when you say "Lahi and Nazmi," can you just tell us their
14 surname, please, their family name?
15 A. Lahi Brahimaj and Nazmi Brahimaj, the two brothers.
16 Q. And what happened to Skender Kuqi after he arrived at Jabllanice?
17 What happened to him, please.
18 MR. HARVEY: With respect, the question should be: What did you
19 see happen to him.
20 MR. ROGERS: Yes, all right.
21 Q. What did you see happen to him?
22 A. I saw him being beaten until he lost consciousness, until he
23 was -- he couldn't move.
24 Q. Who was beating him until he lost consciousness, please.
25 A. Myftar Ibrahimaj. He was most active in the beating.
1 Q. Can you tell us who else was involved, please, in the beating of
2 this man.
3 A. There were others, too. Soldiers. Lahi himself took part in it.
4 Q. Were you able to see any -- what happened -- what -- what he
5 looked like after he had been beaten? Can you describe his condition
6 after he had been beaten, please.
7 A. Yes, I saw him. I had an occasion to see everything.
8 Q. Could you describe his condition, please, after that beating in
9 which he lost consciousness. What did he look like?
10 A. He was in a very bad condition. It was a terrible sight to see.
11 I don't -- I couldn't understand how an Albanian could do that, could
12 inflict such a damage to another Albanian. We had our traditions, but
13 with the passage of time, things have changed.
14 Q. What happened to him after he had been beaten on that occasion?
15 Where did he go and -- yeah, what happened to him? Where did he go?
16 A. He was detained for a long time in the prison. Then he attempted
17 to run away, and it was me who offered him that possibility, to flee.
18 But he was caught again, and he was brought again to the prison.
19 Q. And after he had run away and was caught and brought back to the
20 prison, what happened to him?
21 A. Again, they started beating him. I'm saying this in full
22 responsibility that he died as a result of the beatings.
23 Q. On that occasion when he was brought back after having run away,
24 who -- who was beating him then?
25 A. There were newly recruited soldiers. They were young. They
1 didn't understand. They were not aware of the situation. And they were
2 used to beat him. They were used to beat him, yes.
3 Q. Apart from the young soldiers that were used to beat him, who
4 else was present during the course of the beating, if anyone?
5 A. I said earlier, it was Uki, Commander Uki, as they called him,
6 Alush Agushi, Lahi Brahimaj participated, Myftar Ibrahimaj. These were
7 the persons. Bandashi. I don't know his name, but people called him
8 Bandash. I don't know what his real name was.
9 Q. You told uses that Skender Kuqi was detained for a long time at
10 the -- the -- or a number of weeks. I forget the precise expression, but
11 it was a long time. Were you there for the whole of that time or were
12 you there for only part of that time? I'm trying to understand whether
13 you were there throughout the whole of his detention or not. Could you
14 help us, please.
15 A. I was there until I saw him dead. They said, He isn't dead. But
16 from what I saw, he was dead there as a result of the beatings. He died
17 there. And they took him to hospital, dragged him and put him -- took
18 him to hospital, but he was dead before that.
19 MR. ROGERS: Your Honour, I'm conscious of the time and that
20 would be a convenient time to break.
21 JUDGE MOLOTO: Thank you so much.
22 Mr. Witness, you are now in the process of testifying. You've
23 taken the -- made the declaration to tell the truth, the whole truth, and
24 nothing else but the truth at the beginning of your testimony. We're now
25 going to take a break. We're not done with you. You'll have to come
1 back tomorrow again at 9.00. But, in the meantime, between now and
2 tomorrow when you come back, and until you are excused from further
3 testifying, you are warned that you may not discuss the case with
4 anybody. And "anybody" means anybody, including your wife, including --
5 in particular, the lawyers from the Prosecution, but nobody until you are
6 excused by further testifying, okay?
7 MR. ROGERS: Your Honour, I expect that if he were to make
8 contact with his own personal representative that that would not extend
9 to that.
10 JUDGE MOLOTO: Indeed. If that was to be the case, if your
11 lawyer were to come in and intervene, that's the only person you can
12 discuss the matter with, okay?
13 Thank you very much. And we will see you tomorrow morning at
14 9.00 in the morning in the same court.
15 May the Chamber please move into closed session.
16 [Closed session]
11 Pages 2359-2360 redacted. Closed session.
15 [Open session]
16 THE REGISTRAR: [Via videolink] Your Honours, we're back in open
18 JUDGE MOLOTO: Thank you very much.
19 We will adjourn for the day and come back at 9.00 tomorrow
21 Court adjourned.
23 to be reconvened on Tuesday, the 17th day
24 of April, 2012, at 9.00 a.m.