Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1143

1 Tuesday, 30 November, 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 3.14 p.m.

5 JUDGE PARKER: Good afternoon. We are late this afternoon

6 because of particular pressure with the preceding morning session of the

7 other trial that is using this courtroom. The inconvenience is regretted

8 to everybody. As a consequence, we will have just two sessions this

9 afternoon with a break approximately at midtime.

10 Just as I was coming in, we've received an indication that there

11 may be a submission. So I've asked that the witness remain outside. I

12 look across the Defence bench to see who it is might lead.

13 MR. MANSFIELD: I think all three of us may have observations to

14 make on a position that arises with this witness, but may arise with

15 others as well in the future. May I just indicate what the ambit of the

16 submission is: It concerns the processes of identification, and the

17 witness has as yet to embark upon some of the more critical

18 identifications. So we raise it now rather than later.

19 The position is different with all three of these defendants in

20 relation to this witness, but one of the processes we are concerned

21 about, which Mr. Topolski will develop a little more than I, is the

22 procedure called proofing, whereby some or perhaps all witnesses are seen

23 at a time proximate to the time at which they give evidence and they are

24 asked a series of questions. And the concern, as will be indicated is:

25 Where those questions related to identification whether there is a risk,

Page 1144

1 which we perceive that there is, that the witness may be led to identify

2 -- particularly in cases where the witness has not identified before -- a

3 particular individual.

4 However, in relation to Mr. Limaj and this witness, may I just --

5 we had it done very quickly. We've had photocopied the original

6 statement -- if I can just hand them in. They've just come in -- of this

7 witness, so I can make the point quickly to Your Honours. There are

8 three copies there. I think the Prosecution have copies, but I have more

9 if they need them. I had indicated to Mr. Cayley during the break that I

10 wanted to raise this so he's not taken entirely by surprise.

11 JUDGE PARKER: I'm glad you added the word "entirely" in there,

12 Mr. Mansfield.

13 MR. MANSFIELD: I'm not asking Your Honours to read all of it at

14 this stage, at all. It's really one page so you have a context. If you

15 kindly turn to the last page, which is 1251, you will see a series of

16 questions to this witness by an investigator whose name arose yesterday

17 in relation to the brother of this witness. His name is Kereakes. It's

18 at the bottom of the page. This was his first, that is the witness's,

19 first written statement in January 2002 at about the same time as his

20 brother's statement to the same investigator. The body of the statement,

21 in other words before the questions, ends at the top of the page, 1251.

22 And it is clear from the original handwritten version of this statement

23 that Fatmir Limaj's name is barely mentioned, in fact it's mentioned only

24 in the sense that Celiku is named at the top as being a name on a

25 document. That is the extent to which he is named in the body of the

Page 1145

1 statement in the typed version.

2 On an earlier page, the page before, writing by the investigator

3 has inserted the words "Fatmir Limaj." But the body of the statement

4 suggests that the witness doesn't know that name, because it says: "At

5 this time I still do not know this UCK commander's name." It's crossed

6 out and those words added, but there's no explanation for that. So it's

7 an extraordinary weak situation, so far as identification is concerned.

8 But on the last page what he then asks the witness is: "How did you

9 figure out that Commander Celiku was Fatmir Limaj?"

10 Now, as far as one can tell, there is nothing that the witness

11 has said which indicates that he has figured out that Celiku was Fatmir

12 Limaj. So it begs a question. However, the answer is he he'd heard the

13 name in prison.

14 But the problem comes after that, if there aren't enough already,

15 because he's then shown two line-ups. And when you look at the

16 handwritten version you'll see it's slightly more confused even than

17 what's typed. The two line-ups, U1 and U2, appear to be no longer

18 available. And certainly with regard to U1 I have to admit, and it

19 wasn't until today, that I was aware of what was contained or said to be

20 contained in that line-up, which is -- in fact relates to another

21 defendant, not Limaj, which does give rise to further observations on

22 behalf of that defendant, who Mr. Topolski represents.

23 The problem here is we have also been provided but very recently

24 with the further statement by the investigator. I say a further

25 statement. Apparently there is an earlier one from 2003 which we do not

Page 1146

1 have but is being redacted at this moment. 1st of September, 2003. What

2 we do have, very recently, is an attempted explanation by the

3 investigator as how this came about. Essentially what the investigator,

4 Mr. Kereakes, is saying is that the two line-ups were attached to his

5 documents. He gives them a number, Attachment B, to his statement.

6 However, investigations show that -- well, I don't know. They seem to

7 show is that it wasn't. Certainly no one has it. We have in fact been

8 requesting for a number of weeks now, I think three, that we have these

9 because of course this is the starting place for the possibility of

10 identification in at least two cases.

11 Now, as far as Mr. Limaj is concerned, of course you heard

12 yesterday that we are suggesting that he wasn't at any farm or camp, and

13 that people have identified him from the television screens later. And

14 this witness is another possibility in that same category. And he gives

15 -- this witness gives a description, a facial description, a feature of

16 the facial description, which doesn't match the witness yesterday. What

17 is then important is to see what photograph he picked out to begin with

18 as being Fatmir Limaj. It is true, he picks out photographs later on

19 from other line-ups, but then it depends on what he's already been shown.

20 And the problem is, we don't have it.

21 And the explanations so far are, if I may say so, inadequate as

22 to why the line-ups are unavailable. It's one thing to say they've been

23 destroyed; it's another to say well, I attach it and somehow or another

24 it's become detached. The further difficulty is -- I'm not saying that

25 the first statement has anything to say about this. We don't have the

Page 1147

1 first statement of Mr. Kereakes to hand, so I don't know whether he deals

2 -- maybe he doesn't deal with this.

3 Now, I raise all this because - and I'm sorry to have to do it

4 now; better now than later, however - is that we may not be in a position

5 today to cross-examine this witness until these matters are finally

6 resolved one way or the other, and particularly in relation to the

7 possibility of line-ups being available. Because it is in fact the

8 point, so far as Mr. Limaj is concerned, because of course later on he

9 does go on to identify him and then place him as playing a particular

10 role at the farm or camp. But it all stems from or develops from this

11 very first statement and this very first occasion.

12 So there are differences between the handwritten version of this,

13 the typed-up version of this and missing documents, which we say is

14 unfortunate. The witness undoubtedly will say he doesn't know, because

15 it wouldn't be fair to expect him to remember what he was shown. He

16 might, he might not. I don't know what he will say about how it all

17 began.

18 And this really is a precursor or preface to asking Your Honours

19 to consider the practice that is being engaged in with witnesses in which

20 they are being proofed, set against this background. And I leave that

21 matter for others to develop. But that, put simply, is the predicament

22 we are placed at the moment.

23 JUDGE PARKER: Mr. Mansfield, you mentioned differences between

24 the typed and the handwritten.

25 MR. MANSFIELD: Yes.

Page 1148

1 JUDGE PARKER: We don't have the handwritten at the moment, do

2 we.

3 MR. MANSFIELD: No, I apologise for that.

4 JUDGE PARKER: Can you indicate the materiality of those

5 differences, please.

6 MR. MANSFIELD: The main difference I can come to straightaway --

7 well, sorry, there are two main differences. The main difference is when

8 you see on 1250 the name "Fatmir Limaj" written in the margin, that name

9 does not appear on the original. On the handwritten original there is no

10 name written on the margin and there are no crossings-out.

11 JUDGE PARKER: I must say, looking at the document I had the

12 first impression that these -- that there are at least two types of entry

13 and one of them -- one type seems to have had initials. This is one of

14 those. And there is at the foot an indication of a date, 7th of April --

15 MR. MANSFIELD: I think it's the first, actually.

16 JUDGE PARKER: The 1st of April.

17 MR. MANSFIELD: I think so.

18 JUDGE PARKER: That shows my photocopy is a bit

19 inadequate -- whereas the statement itself is the 16th of January. And

20 it seemed to me that there may have been, as it were, two bites at the

21 cherry.

22 MR. MANSFIELD: I think Your Honour is absolutely right, because

23 it is clear from other documents -- well, I say it's clear. It appears

24 to be. If you look at the page you do have, 1251, you will see writing

25 on it saying: "Read to victim, 1st of April."

Page 1149

1 So it may be that's what happened here is that the addition of

2 the name didn't occur on the 16th of January but occurred on the 1st of

3 April. So far as I am aware, I'm doing this quickly because we've only

4 just received some of this, he, the investigator, doesn't deal with that

5 at that point, namely that -- well, it would be the other investigator

6 because I think it's Mr. Manthey's signature who took it over. Yes, it

7 is. So it's another investigator who reads over the earlier work and

8 then alterations are read over at that stage. That does appear to be

9 what happened.

10 The other difference is that the handwritten portion relating to

11 the photo line-ups is very unclear, and there are gaps in it. And for

12 example -- I'll just give an example. With regard to U1 and that line-up

13 the words: "As being at Lapusnik" are not there in the handwritten

14 version. In other words, it's somebody's interpretation of what this

15 witness is saying, possibly the investigator's interpretation of what he

16 is saying. But of course that's important because although you -- that

17 line-up doesn't relate, I'm told, to me or at least that's what the

18 statement of the investigator suggests, clearly saying somebody looks

19 familiar doesn't necessarily mean familiar in that context, however it

20 might do.

21 So, Your Honour will see straightaway that there are difficulties

22 here at this stage which don't appear to have been clarified in a way

23 which makes it sensible to start asking questions, because we may be --

24 or at least I may be asking them on a false basis, because the witness

25 may not remember. And I wouldn't want to put a question unless I'm sure

Page 1150

1 how matters arose in the first place.

2 So I think the Prosecution themselves may accept that it is a

3 very unsatisfactory situation that we are faced with here in relation to

4 this particular witness.

5 JUDGE PARKER: Thank you.

6 MR. TOPOLSKI: Your Honours, I wonder if I might support that

7 application in relation to the particular, and then if it's convenient

8 deal with the general.

9 Your Honour, the revelation of the Kereakes statement is

10 important for the Court to appreciate. That which Mr. Mansfield has

11 handed up to you, the Court will see, bears two dates when Mr. Kereakes

12 was interviewed, the 24th of September and the 10th of November. It is

13 on that date that this statement, as it were, comes into legal being by

14 being signed and dated by him. It is not disclosed, that is to say it

15 does not find its way into a batch of disclosure, until the 18th of

16 November. And indeed, had Mr. Mansfield not been good enough to report

17 to me this morning the nature of his conversations with Mr. Cayley this

18 morning, I, too, would have found myself cross-examining potentially upon

19 an utterly false basis. And with those remarks, I can bring it home, as

20 it were, to deal with the particular problem with this particular

21 witness, L-04.

22 Before the 29th of November when he came to this country or this

23 city, L-04 had been interviewed or seen no fewer than five time by times

24 by either UNMIK or ICTY investigators. On none of those occasions and in

25 none of the material emanating from those occasions does he describe my

Page 1151

1 lay client. And never before does he purport to link the nom de guerre

2 Qerqiz with Isak Musliu. That is what I thought the position was as of

3 7.00 p.m. last night when we adjourned this witness, part heard. It now

4 appears from the Kereakes material which was disclosed 11 days ago, which

5 if it be my fault to have failed to pick up, I apologise, but it appears

6 from that disclosure that, indeed, this witness was shown a line-up

7 Kereakes calls line-up U1; that it seems did contain an image of my

8 client, whom he does describe as "looking familiar."

9 Therefore, to have cross-examined this witness upon the basis

10 that it wasn't until the 29th of November or thereabouts, that he

11 indulged in the exercise of seeking to make the link between Qerqiz and

12 Musliu would have been to cross-examine him on a wholly false basis. The

13 difficulty abides, however, in that, as Mr. Mansfield has identified,

14 what has been lost and perhaps gone forever is that line-up, U1. So we

15 cannot see it.

16 Therefore, and for those reasons, we respectfully support the

17 submission Mr. Mansfield has made. We have no appetite nor wish to delay

18 matters. We only have an appetite or wish to put our case as fairly and

19 squarely before the Court and to test the Prosecution's case to the best

20 of our ability with all available material.

21 Your Honours, if it be convenient, it may be helpful to go from

22 the particular to the general, and the general is an oral application

23 that we foreshadow in a written document that we hope the Court received

24 just before it sat. We had not anticipated, I should say straightaway,

25 getting to this today. And indeed, we had originally contemplated making

Page 1152

1 this a written submission. But it may be --

2 [Trial Chamber confers]

3 JUDGE PARKER: We're inclined to think it may be better to deal

4 with the immediate problem, Mr. Topolski, at this stage and not move to

5 the general.

6 MR. TOPOLSKI: Very well. That's why I was speaking slowly,

7 anticipating an interruption.

8 JUDGE PARKER: Allowing time for one slow mind, at least, to

9 catch up with you.

10 MR. TOPOLSKI: Now, Your Honour is not going to make me comment

11 on that.

12 Your Honour, that is the submission we make in relation to the

13 problem identified by Mr. Mansfield. And I will wait to hear from the

14 Chamber, if I may, as to when we may be heard. But may I say it is

15 regarded by all who Defence, and I have no doubt Mr. Cayley and his team,

16 as something important because it is a continuing process, this proofing

17 process. And we'd like the opportunity to be heard on it as soon as may

18 be convenient to the Court.

19 JUDGE PARKER: Thank you, Mr. Topolski.

20 Mr. Guy-Smith.

21 MR. GUY-SMITH: From the information that I have at the present

22 time, I am not directly affected by either of these line-ups. However, I

23 am somewhat concerned based upon discussions that I've had with the

24 Prosecutors that there were a number of line-ups that were created by Mr.

25 Kereakes involving various photographs, some of which may well have

Page 1153

1 involved my client which were shown to certain witnesses and not shown to

2 others. If indeed there was the availability of a line-up to be shown to

3 the witness we presently have before us and Mr. Kereakes failed to do so,

4 that information is information which would certainly be, I think, of

5 import to the Trial Chamber. And I will leave my remarks at this time

6 with regard to this particular issue at that.

7 JUDGE PARKER: Thank you.

8 Mr. Cayley.

9 MR. CAYLEY: Thank you, Your Honours. I think in this particular

10 situation the most prudent course for me to take is to explain the

11 factual situation to you, because in that way I think you'll see more

12 clearly what the problem is.

13 In essence, as I said in my opening, we in effect inherited the

14 UNMIK investigation. It is what it is. And any mistakes or errors that

15 were made are not our errors, but of course we have to live with those.

16 Now, if I could address first of all the issue of the statement

17 by Witness 04, which Mr. Mansfield handed up to you. And one thing I

18 wanted to clarify with you immediately is the issue of the manuscript

19 annotations to the statement, which as you pointed out, Mr. President,

20 appear to have a signature next to them.

21 What happened here is that a statement was taken down using an

22 individual who spoke Albanian and German, and then it was taken down into

23 English. So the witness spoke Albanian. He had a friend with him who

24 spoke German. And the German -- the Albanian who spoke German spoke

25 German with a German-speaking investigator who then put the statement

Page 1154

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

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Page 1155

1 into English. That is the situation.

2 Now, that was done in January of 2002. The statement was then

3 subsequently read back to the witness in April, and there is a video

4 recording of the readback of the statement to the witness, which the

5 Defence have. And in that readback - it's read back to him, obviously,

6 in Albanian - he inserts details that were not contained in the original

7 version, one of which is the point raised by Mr. Mansfield, that he

8 identifies the commander. He crosses that out. That's not right. At

9 this time I still do not know this UCK commander's name. He crosses that

10 out. That's not right. I do know the name is Fatmir Limaj. And that is

11 recorded.

12 That is a transparent process that they went through. It may be

13 that going through a number of languages is not an ideal way of doing it,

14 but that was in fact done. And as I say, you can see where all of the

15 annotations are made, and I believe that the little squiggles there are

16 the signatures of the witness where he -- or the signature of the

17 investigator or the witness confirming that the amendment has been made.

18 In respect of the photo line-ups, the position is this: There

19 were shown, I understand, to witnesses in this case a photo spreadsheet

20 with six photographs upon it, including one each of the accused. When

21 they were shown to different witnesses, the order of the faces was

22 changed. So the witnesses were not shown an identical order in every

23 case. So when the statement as it is here refers to photo line-up U1,

24 U2, it may be referring to an order that is different than the copy that

25 we have in our possession.

Page 1156

1 Now, what the police officer should have done is to have attached

2 the correct photo line-up to the statement. And indeed Mr. Kereakes will

3 say in evidence that he did. But what he will also say is that from his

4 memory, from his memory, this particular witness did point out Fatmir

5 Limaj in the photo line-up. So it's a matter of his credibility and he

6 will give evidence in the trial. Now, clearly we could not have possible

7 shown this witness another separate line-up. That would have been

8 completely improper, to sort of try the process again. I mean, it

9 happens once and that's it. So whereas this witness can say that he

10 recalls identifying a photograph that he saw as Fatmir Limaj, that's

11 really as far as it goes. It's actually for the police officer to come

12 in and confirm that, yes, I was there and I recall that the photograph

13 that was identified was Fatmir Limaj. And it's for the Defence to

14 cross-examine on that issue. And it's a matter for you to attach a

15 particular weight to the evidence that this witness can give without, we

16 accept, the photo line-up, and indeed for Kereakes who will give

17 evidence. You have to attach the relevant weight to his evidence,

18 because he can't produce the photo spreadsheet that was actually shown to

19 the witness.

20 JUDGE PARKER: That's what I'm waiting to hear specifically. Is

21 it the position that it is simply not available, cannot be located? What

22 is the situation.

23 MR. CAYLEY: The situation is the exact line-up, the exact order

24 of pictures we do not have. We do not have it in the CCIU investigation.

25 It was not attached to the statement at the time for whatever reason in

Page 1157

1 2002. Mr. Kereakes believes that it was, but it wasn't. And that's the

2 situation we find ourselves in.

3 JUDGE PARKER: And it's a question of fact, you say, whether

4 there was an identification. That's one issue. Another and very

5 significant issue is the ultimate task of this Chamber to evaluate the

6 reliability of any photographic identification. And in this case, on

7 what you indicate, the Chamber will be asked to do that without the

8 capacity to view what it was.

9 MR. CAYLEY: You -- let me be clear here.

10 JUDGE PARKER: [Previous translation continues]... that line-up.

11 MR. CAYLEY: Sorry, Your Honour. And Mr. Whiting is moving in

12 close because he thinks I'm going in the wrong direction. We can show

13 you a version of the photographic line-up. We cannot show you the exact

14 one that was shown to the witness. So we can show you the same

15 photographs, but not in the exact order that were shown to the witness.

16 So you will be able to see the photographs that were shown, but instead

17 of being 1, 2, 3, 4, 5, 6, they may be 6, 5, 4, 3, 2, 1, or a

18 permutation.

19 JUDGE PARKER: Do you anticipate that you may be able to

20 demonstrate those factual matters to the Chamber in the course of

21 evidence.

22 MR. CAYLEY: I think through the police officer, Kereakes, Your

23 Honour, yes, we will. And then it is a matter of his credibility for the

24 Chamber.

25 JUDGE PARKER: Now, are these photographs and is this material

Page 1158

1 with the Defence.

2 MR. CAYLEY: The foils are with the Defence, they do have them.

3 Not the, as I emphasise, the exact one that was shown to this witness,

4 because we don't have them. But they have copies of the foils. In fact,

5 they were given to them -- I can give them the ERN numbers if it's

6 helpful. 03231557 -- my apologise. 03231568 and 03231616. And the last

7 one that Mr. Guy-Smith will be interested is 03231631.

8 JUDGE PARKER: Has there been notice that these are the

9 photographs in your case that were on the photo sheet shown to this

10 witness.

11 MR. CAYLEY: I think -- well, again, they're not the ones that

12 were shown to the witness. What I'm saying is a different order would

13 have been shown. But the Defence are aware --

14 JUDGE PARKER: I understand you to say you have the very

15 photographs that were on a photo sheet.

16 MR. CAYLEY: Yes.

17 JUDGE PARKER: That photo sheet was shown to the witness by the

18 UNMIK investigator.

19 MR. CAYLEY: Yes, but in a different order.

20 JUDGE PARKER: What you do not have is the original photo sheet.

21 MR. CAYLEY: Yes.

22 JUDGE PARKER: You have the photographs but you cannot be certain

23 of the order.

24 MR. CAYLEY: Absolutely correct, Your Honour.

25 JUDGE PARKER: That's the evidence you hope to establish.

Page 1159

1 MR. CAYLEY: Yes, Your Honour.

2 JUDGE PARKER: My question is: Have the Defence been told they

3 are the photographs that were on that photo sheet.

4 [Prosecution counsel confer]

5 MR. CAYLEY: My colleague is telling me that it's in the

6 statement of the police officer, Kereakes.

7 JUDGE PARKER: The one that has just been received.

8 MR. CAYLEY: The one that was received on the 18th of November.

9 JUDGE PARKER: Are you saying it was given to the Defence on the

10 18th of November.

11 MR. CAYLEY: I think that's the date Mr. Topolski gives, Your

12 Honour, yes.

13 MR. TOPOLSKI: Yes.

14 JUDGE PARKER: I had rather understood it was in your hands only

15 extremely recently, I'm sorry.

16 MR. TOPOLSKI: Well --

17 JUDGE PARKER: Maybe the emotion of the moment carried me too

18 far.

19 MR. TOPOLSKI: No, no, no. My submission to Your Honours was

20 that this was disclosed, the Kereakes second statement was disclosed in a

21 batch on the 18th of November. I made it clear that I had not personally

22 seen this until this morning.

23 JUDGE PARKER: Though, you remind me of that. I think Mr.

24 Mansfield made quite a similar observation with apology.

25 MR. CAYLEY: Just to be absolutely clear: There is a second

Page 1160

1 Kereakes statement which we have to disclose to the Defence, but it

2 doesn't provide any more information than they already have in terms of

3 linking the photo spreadsheets to the particular statements.

4 JUDGE PARKER: Is this earlier or later in time, this second

5 statement.

6 MR. CAYLEY: It's an earlier statement.

7 JUDGE PARKER: What vintage.

8 MR. TOPOLSKI: I'll come to my colleague's rescue. It's the 1st

9 of September, 2003.

10 JUDGE PARKER: Thank you.

11 MR. CAYLEY: It's a mistake, Your Honour, on our part, for which

12 I apologise. It's something we thought had been disclosed and hadn't

13 been disclosed. I don't believe it sheds any more light on this issue on

14 the later statement they already have.

15 On the second issue of the -- Mr. Topolski's issue concerning the

16 identification of Qerqizi, the physical description, this relates -- it's

17 a linked issue and I know, Mr. President, you've already stated that you

18 would like to address the issue of proofing separately. And indeed, I

19 believe -- because this is an institutional issue for the whole office,

20 it's going to affect all of the trials that are ongoing in this building,

21 this issue having been raised. So we would like to actually respond in

22 writing on that.

23 But what I would say specifically about the physical description

24 that the witness gave of Qerqizi in the proofing session with me, first

25 of all, he had never previously been asked this question. Why? I don't

Page 1161

1 know. And he was not, I think as is being suggested in the written

2 submission of the Defence, he was not led into it. So I didn't, as is

3 being suggested by Mr. Topolski, I didn't describe Qerqizi and then ask

4 him to agree with me. I asked him for a physical description of the man

5 known as Qerqizi. And that was not previously contained in any of the

6 statements that had been given to UNMIK or to the ICTY.

7 Now, I do not believe -- I mean, the question of proofing as a

8 process is a separate issue. But I do not believe that that is an

9 unreasonable question, one of clarification, to ask in the proofing

10 process. The Defence are on notice. Yes, it is contained, I suspect, in

11 the sixth statement that this witness has made. That is a matter that

12 can be addressed by them on cross-examination, and Your Honours can

13 decide what weight you would wish to attach to that description having

14 been contained in a statement at such a late stage in the process. But

15 that's all I would like to say on that issue. And as I say, we would

16 like to address the whole issue of proofing in our own written

17 submission. Thank you.

18 MR. TOPOLSKI: Your Honour, may I just lay a ghost and say no

19 more than that. I don't read the document that Mr. Powles prepared -- is

20 to form the basis of all submissions to ever suggest that Mr. Cayley led

21 the present witness. The document addresses the possibility of leading

22 questions being asked in the generality of the exercise, not in the

23 particular. So Mr. Cayley need not fear. I'm not pointing any guns at

24 him, yet.

25 JUDGE PARKER: Thank you, Mr. Topolski.

Page 1162

1 MR. MANSFIELD: Your Honour --

2 JUDGE PARKER: I was about to turn now to -- you have heard Mr.

3 Cayley's position, Mr. Mansfield.

4 MR. MANSFIELD: Yes, I have.

5 JUDGE PARKER: And I would like to hear from you about your

6 capacity to cross-examine today, if that point is reached.

7 MR. MANSFIELD: Yes. May I -- I was about to deal with that

8 precise point. Because what we are now being told is the photographs

9 about which we have general notices, and the references have just been

10 given to Your Honours, are the photographs that Mr. Kereakes deals with.

11 Well, his statement which I'm looking at -- I'm sorry that you don't have

12 it. We can have copies made -- But his statement does not say that. His

13 statement says that he assembled photo spreadsheets and that he

14 interviewed various people, but there's no indication of which line-ups

15 he's using with regard to each of them. In other words, the spreadsheet

16 or photo sheet that is used in relation to this witness is an amalgam of

17 six photographs that he uses in the photo spread. But whether it's the

18 same six photographs or a different six photographs that we uses in the

19 other ones or whether even they're the same upon which we have general

20 notice, is not there.

21 In other words, the important aspect of this, which is continuity

22 and provenance is not addressed by Mr. Kereakes -- it is addressed by Mr.

23 Cayley, but it isn't addressed by the witness. So once again I give a

24 practical example. If I were to put photographs of the kind that we --

25 I'll just hold them up for a moment as an example here. If I just ask

Page 1163

1 this witness whether this was -- this doesn't relate to this witness, it

2 relates to another witness -- whether this was the line-up he saw, he

3 probably won't know. And of course on this one, number 3 isn't Fatmir

4 Limaj, in any event. But whether the photograph of Fatmir Limaj that

5 does appear on this line-up was the same photograph, and there are some

6 obvious differences, with the description the witness gives of the person

7 he saw was that in fact -- I think he's saying -- I'm sorry, Mr. Kereakes

8 is saying he picked out number 3 who is just above number 6 on this one

9 would be -- I would be fishing -- I would be in the dark, completely in

10 the dark to do it. And it would be not profitable to start asking

11 questions when he doesn't know and I don't know either.

12 So Mr. Kereakes needs to be asked whether in fact the photographs

13 we have been given notice of were the photographs that were being used in

14 relation to this witness and that the photograph that is shown of Limaj

15 was the one being used and that it was at the position that he has

16 written or noted down in the statement. None of that is covered.

17 Now, I appreciate the first statement may not address any of

18 these issues. I don't have it yet and I accept what Mr. Cayley says that

19 it doesn't address those. So I am less concerned about it. But I am

20 concerned about starting a cross-examination when it is not clear -- the

21 witness is available, I think he's in another jurisdiction, but he could

22 be contacted about these matters fairly quickly, at least with regard to

23 that matter and I think Your Honour will see what the difficulty is.

24 We say it's a crucial issue, because I think as Your Honours

25 pointed out quite rightly, if he is able to pick out Fatmir Limaj and

Page 1164

1 knows his name, then why isn't it in the statement, in the body of the

2 statement and only appears in April when it is added at a later stage?

3 So the question is: What was he shown at that stage? And I know Mr.

4 Kereakes is saying it was Fatmir Limaj. That's not the point. I can't

5 cross-examine another witness when another witness says it was Fatmir

6 Limaj. We need the document.

7 JUDGE PARKER: Anything to add, Mr. Topolski.

8 MR. TOPOLSKI: No.

9 JUDGE PARKER: I take it not, Mr. Guy-Smith.

10 MR. GUY-SMITH: No, Your Honour.

11 JUDGE PARKER: Thank you.

12 Mr. Cayley, it seems there is still some wood to be got clear of.

13 MR. CAYLEY: Could I just read to you what the witness Kereakes

14 says in his statement because then I think -- I don't want to get into

15 this because obviously he's got to come here to testify. But if I could

16 just -- if you could go back please a page and then, Your Honours, I'll

17 let you make the decision whether or not the issue is clear. I would

18 submit to you it's clearer than what Mr. Mansfield is saying.

19 In paragraph 4, he states this: "I will explain how I prepared

20 the photo spreads in this case. I made photo spreads for Isak Musliu

21 marked U1 and Fatmir Limaj marked U2. I used six photographs for each

22 photo spread, and for each one I created different versions of the photo

23 spread with the suspect photograph placed in a different spot in each

24 one. However, all of the versions were labelled the same way: U1 for

25 Isak Musliu photo spread and U2 for the Fatmir Limaj photo spread."

Page 1165

1 Now, that's in paragraph 4. And then if I could just read you

2 one final paragraph. He says this, and I can't obviously read the name

3 of the witness, but it is referring to Witness L-04.

4 He says this: "I interviewed L-04," he uses the name of the

5 witness, "on the 16th of January, 2002. I have reviewed the report of

6 this interview and I see that it states that R1," that's him, that was

7 his call sign as a police officer, "displayed photo line-ups U1 and U2.

8 I viewed line-up U2 and I identified number 3 as Fatmir Limaj, nicknamed

9 'Celiku.' I viewed line-up U1 and number 4 looks familiar as being at

10 Lapusnik, but I'm not sure." Now, that's in respect of Isak Musliu. So

11 he sees the photograph but he doesn't know what the person is called. It

12 seems familiar to him.

13 Then Kereakes goes on to say: "I also reviewed my log entry for

14 this date in which I wrote that" -- again, he refers to the name of the

15 witness, L-04 -- "positively identified Fatmir Limaj as 'Celiku' from

16 photo line-up U2. I've attached this log entry as Attachment B to this

17 statement. I recall that L-04 correctly identified Fatmir Limaj in the

18 photo spread marked U2 and that he pointed to the photograph of Isak

19 Musliu in the photo spread marked U1 when he stated that number 4 looks

20 familiar as being at Lapusnik, but he was not sure."

21 That what Kereakes will say, Your Honours, when he comes here.

22 Now, again, I can't cure the problem of the photo spread being attached

23 to the statement. That's there. But again, the issue ultimately is the

24 credibility of this police officer and his recollection and his records

25 of events at the time. So I believe on the basis of that we can, in

Page 1166

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Page 1167

1 fact, go forward with the cross-examination of this witness because

2 ultimately all of -- all this witness can say is: I was shown a photo

3 spreadsheet and I recall identifying Fatmir Limaj. We can't produce that

4 photo spreadsheet. The evidence is what it is. And Your Honours will

5 have to attach the according weight to it. But I do not believe that

6 Kereakes can give anymore clarification that than he has given management

7 in this matter. Contacting him now is not going to give any further

8 evidence that is going to explain this situation away. Thank you, Your

9 Honours.

10 [Trial Chamber confers]

11 JUDGE PARKER: There can be no doubt in the assessment at this

12 point of the Chamber of the materiality in this case of investigation

13 [sic]. The potential for errors is somewhat notorious. The question of

14 weight will be of great significance. That is said by way of

15 introductory observation so that it is clear that the Chamber doesn't

16 view lightly the significance in these trials of the issues that have

17 been ventilated this afternoon by counsel.

18 The upshot of the submissions, as the Chamber sees it at the

19 moment, is that the Prosecution is seeking to proceed on a factual basis,

20 which it anticipates being able to establish and which has been indicated

21 in his submission by Mr. Cayley. On that factual basis, it is clear that

22 much might be put by way of questioning and by way, ultimately, of

23 submission by the Defence insofar as each is affected by this evidence,

24 in attaching weight to any identification. That of course is a matter in

25 the end for assessment by the Tribunal.

Page 1168

1 But on that factual basis as presently indicated, it is not

2 apparent to the Chamber that the position will be in any material way

3 further clarified by delay at this point. The Prosecution is at some

4 apparent disadvantage in the matter of identification because of the

5 factual basis outlined by Mr. Cayley. Those disadvantages are apparent

6 to all. There seems no value in delay if it is not the case that there

7 is a prospect that the factual basis presently outlined by Mr. Cayley

8 will change or be clarified or that further statements or photoboards

9 will become available. On the basis of his assurance that that is not

10 the case and that the Prosecution is in effect stuck with what it

11 presently has, in the Chamber's view there would be no basis today for

12 further adjournment of cross-examination.

13 We would add that if that factual basis proves in the course of

14 the trial to be materially not substantiated, there may well arise a need

15 to recall. But at the moment, that's merely identified as a possibility

16 so that counsel are aware that the Chamber can foresee that that might be

17 a situation that could arise.

18 For the moment, we should proceed with the evidence. The

19 submission that is foreshadowed is one that ought to be dealt with in the

20 near future. It is of significance for witnesses that will be led

21 throughout this trial. I understand you want to give thought to the

22 matter, Mr. Cayley, and to put in some written submission. I don't know

23 whether you thought by that that the matter could be long delayed. The

24 Chamber is not minded that way.

25 MR. CAYLEY: Your --

Page 1169

1 JUDGE PARKER: We want to be reasonable. What do you think you

2 need.

3 MR. CAYLEY: Can I use the lame old excuse and just consult with

4 my colleagues for a second.

5 JUDGE PARKER: I've just consulted mine, so you should feel free.

6 MR. CAYLEY: We will file something with the Court on Monday, if

7 that's satisfactory, Your Honours.

8 JUDGE PARKER: The Chamber would think Friday, Mr. Cayley.

9 MR. CAYLEY: I'll do as I'm told, Your Honour.

10 JUDGE PARKER: I'm grateful.

11 MR. TOPOLSKI: Your Honour.

12 JUDGE PARKER: And we would anticipate then that -- well, it

13 would then be possible for the submission to be heard on Friday, if there

14 has been an opportunity for it to be considered. Failing that, it would

15 be Monday.

16 MR. TOPOLSKI: May I be permitted two matters very quickly. Page

17 22, line 13, may I suggest that the word investigation should in fact

18 read identification. The second line of your ruling, Mr. President.

19 JUDGE PARKER: We'll check it out in a moment. Identification it

20 should certainly be.

21 MR. TOPOLSKI: I don't know whether there is the facility for

22 interim relief in this jurisdiction, but as the submission regarding

23 proofing goes to its fundament: In other words in our first position,

24 whether it should continue; in our second position, if it should continue

25 whether it should continue with some suggested safeguards. I don't know

Page 1170

1 whether the Chamber has a view as to whether the process will in fact

2 continue and should do so uninhibited in any way prior to the Chamber

3 hearing from the OTP and deciding the matter. I have no doubt that those

4 who are to follow this present witness will be succumbing to the same

5 process as hitherto. I simply raise the matter for the Court's

6 consideration.

7 JUDGE PARKER: Thank you.

8 [Trial Chamber confers]

9 JUDGE PARKER: The present procedure is one long-established in

10 this jurisdiction and is not unique to this jurisdiction. We would not

11 seek at the moment to disturb it until we have heard fully about that

12 matter. So we would not intervene in the present process.

13 The witness could be brought in. Thank you.

14 [Trial Chamber and registrar confer]

15 [Trial Chamber confers]

16 JUDGE PARKER: We'll move to private session.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

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24 (redacted)

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Page 1171

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3 [Open session]

4 WITNESS: WITNESS L-04 [Resumed]

5 [Witness answered through interpreter]

6 Examined by Mr. Cayley: [Continued]

7 Q. Witness, good afternoon.

8 A. I don't understand this language.

9 Q. You're not --

10 MR. CAYLEY: He's not receiving it in his own language.

11 THE WITNESS: [Interpretation] Yes. Yes, now.

12 MR. CAYLEY:

13 Q. Good afternoon, sir, do you hear me now.

14 JUDGE PARKER: Before you continue, Mr. Cayley.

15 Did you understand what I said to you, sir? Did you hear -- did

16 you understand what I said to you a little earlier?

17 THE WITNESS: [Interpretation] No. No, I'm not clear.

18 JUDGE PARKER: I'll repeat briefly the main things. We are sorry

19 you've been delayed because of other matters that had to be attended to.

20 Your evidence now -- will now continue. Mr. Cayley will ask you more

21 questions. You will remember that the affirmation you made at the

22 beginning of your evidence still applies.

23 Yes, Mr. Cayley.

24 MR. CAYLEY: Thank you, Your Honours.

25 Q. Witness, we're now in public session, so I would ask you for the

Page 1172

1 moment not to mention the names of any of your relatives, but you can in

2 fact mention the names of other prisoners. But be careful about this and

3 we'll soon go back into private session.

4 Now, I want to remind you of a question that I put to you

5 yesterday, and you were speaking about the prisoners in the stable. And

6 I asked you: "Why were they bloody? Did you find out why they were

7 covered in blood?"

8 And you say: "It was because of what I experienced myself. It

9 was because of Qerqiz who had beaten them." That was on page 87 of the

10 draft transcript.

11 Now, the question I have for you is: Did you see anybody being

12 beaten in the stable?

13 A. Everybody -- all of us were beaten in the stable.

14 Q. Would that include all of the prisoners that you referred to

15 yesterday, all of the prisoners that you named in the stable?

16 A. Yes.

17 Q. Who did the beating?

18 A. Qerqizi.

19 Q. Was there anybody else that was beating prisoners in the stable?

20 A. I don't understand the question.

21 Q. You've said that Qerqizi was beating prisoners in the stable.

22 And my question for you is: Was anybody apart from Qerqizi beating

23 prisoners in the stable?

24 A. At that moment, no. Qerqizi came every day and beat us. Or

25 every night.

Page 1173

1 Q. Did he come alone or with others?

2 A. He came there alone.

3 Q. How did you know that this individual was called "Qerqizi"?

4 A. There was a co-villager of his next to me in the stable.

5 MR. CAYLEY: Could we go into private session, please.

6 JUDGE PARKER: Private session.

7 [Private session]

8 (redacted)

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3 [Open session]

4 MR. MANSFIELD:

5 Q. I want to ask you today about the evidence you've just given

6 concerning Fatmir Limaj, when you say you were taken to see him. That's

7 what I want to ask you about. Do you understand?

8 A. Can you repeat the question, please?

9 Q. Yes. I want to ask you about the evidence you have given today

10 relating to Fatmir Limaj whom you say you saw when you were taken to see

11 him and he asked you some questions, it's that.

12 A. Yes. When they took me to Fatmir Limaj, he asked me, Why are you

13 here --

14 Q. Yes, I'll ask the questions. You have plenty of time. Please do

15 not repeat what you've already said. I'll ask the questions slowly.

16 Now, first of all, do you think there is a possibility you are

17 thoroughly confused about this incident relating to Fatmir Limaj?

18 A. No.

19 Q. Do you think that your memory about this is reliable?

20 A. Yes.

21 Q. I want to suggest to you that it did not happen at all. Do you

22 understand?

23 A. What do you mean? I'm not getting you. What do you mean by

24 nothing happened?

25 Q. I want to suggest to you that you were not taken to a room where

Page 1209

1 you saw Fatmir Limaj and where he asked you questions. I want to suggest

2 to you that did not happen.

3 A. Of course it happened. If I were not there, how could I say it

4 happened? I was there. I suffered. Because of Fatmir Limaj, I'm free.

5 I have nothing to say against him.

6 Q. I appreciate that. When you were seen first of all by an

7 investigator, do you remember that occasion? I don't ask for the date,

8 just the moment in time. Do you remember being seen first by an

9 investigator about --

10 A. No, I don't remember.

11 Q. I'm going to --

12 A. It's been a long time.

13 Q. [Previous translation continues]... the investigator's name in

14 case it rings a bell with you. The investigator's name was Kereakes.

15 Does that mean anything to you?

16 A. No.

17 Q. No. The time that you saw him was in January 2002. Do you

18 follow? We have a record of when you saw him.

19 A. I understand what you are saying, but I don't remember the dates

20 or the years because six years have passed.

21 Q. I understand. In the record that was kept of what you said in

22 January 2002, you make no mention at all of being taken to see a

23 commander, whether he be called "Celiku" or "Fatmir Limaj" or any other

24 name, who asked you questions and who then came to see you afterwards.

25 Now do you follow what I'm putting to you?

Page 1210

1 A. I don't remember what you are saying.

2 Q. No. You may not remember, but we have a record of what you said.

3 You did not say to that investigator -- in a statement which covers the

4 number of pages, you did not say anything about being taken to see

5 Commander Celiku. You did not say anything about him asking you

6 questions.

7 Now, the question I have for you is: Why is it that you said

8 nothing about seeing Commander Celiku or being taken to see him and he

9 asking you questions when you were seen by an investigator?

10 A. I'm telling you that -- I don't remember the words you are

11 saying. But I'm saying right in everybody's face: I have nothing

12 against Fatmir Limaj; he released me. And this is why I'm here, present.

13 I told the truth, whatever I saw with my eyes.

14 Q. Why didn't you tell that to the first investigator?

15 A. Maybe the interpreters didn't understand everything I said.

16 Q. That --

17 A. I think this might be a cause, a reason why.

18 Q. They would have to have not listened to anything that you said

19 because there is no mention at all of you being taken to see anyone,

20 whatever the name, or being asked questions by anyone while you were at

21 the camp. Do you follow? Nothing.

22 A. But it was in Lapusnik they interrogated me, in a room, as they

23 said as a headquarters it was used. He asked me, Who brought you here?

24 I said, I don't know. He said, Why did he bring you here? I said, I

25 don't know.

Page 1211

1 Q. I know that is what you are now saying happened. I'm going to

2 move on. Please listen carefully.

3 No mention at all in the first interview with an investigator.

4 Some months later in 2002 you were seen by another investigator. It may

5 be you don't remember the occasion or a second investigator. Would that

6 be right, you don't remember?

7 A. I don't remember. We are suffering from the traumas of the war.

8 I am saying you in your face. I have nothing against Fatmir Limaj. I

9 explained everything.

10 Q. Right. Now, I want to ask you carefully. You said today that

11 the person who took you to see Limaj was a soldier called Tamul or

12 Tamuli. Do you remember saying that today?

13 A. Yes, Tamuli.

14 Q. Tamuli. Could you kindly describe Tamuli to us. What does he

15 look like?

16 A. He was thin, maybe tall. About 170 or 75. I don't know about

17 his age.

18 Q. Hair?

19 A. I don't remember his hair, because he had a cap on his head.

20 Q. Or could it have been someone else entirely that took you, not

21 Tamul?

22 A. Everybody called him Tamul. That's why I'm saying "Tamul." But

23 he was the same person together with Qerqizi who came there. There was

24 nobody else.

25 Q. Are you quite sure it was him and not anyone else?

Page 1212

1 A. I'm very sure.

2 Q. You're very sure. Then would you kindly explain why you told the

3 second investigator that the man who took you to see the commander was

4 called "Murrizi"?

5 A. This is strange. I told you, this is because -- I made a mistake

6 because I was suffering from the traumas of the war, but afterwards I

7 explained it, I corrected it. I made a mistake. I'm telling you.

8 Q. So that your memory is not reliable, but subject to mistake; do

9 you agree?

10 A. Please. I'm telling you what I saw. And I tried to tell you

11 what I saw and what I went through. I'm telling the truth, and I swore

12 to tell the truth. I don't know what to say. I am saying I have nothing

13 against Fatmir Limaj. Hadn't it have been for him, I wouldn't have been

14 alive today. It was because of his words that I was released. So I have

15 nothing against him.

16 Q. You say today that he asked -- that the man that took you was not

17 Murrizi but Tamul and that that man, Tamul, told you, We go to the

18 commander, Commander Celiku. He told you that, did he?

19 A. Yes. It was he who took me to Commander Celiku.

20 Q. Did the person who took you, according to you today, as you have

21 said today, you began your evidence by saying -- that he told you that

22 Fatmir Limaj has come. We go to the commander.

23 You were then asked a further question and you said what he

24 actually said was Commander Celiku. Now, is that what the person said to

25 you before you went?

Page 1213

1 A. I might have made a mistake, because I didn't know who Fatmir

2 Limaj was -- as a commander, I mean. But Shala came, he was first to

3 come. He came to the stable and he said, Get up because Commander Celiku

4 is coming. It was Shala that I heard it from, not Tamuli. It was not

5 Tamuli who told me.

6 Q. I suggest that you're making this up as you go along. You've

7 never said that before, have you?

8 A. Tamuli came to the stable and took me to Fatmir Limaj, Celiku.

9 Q. You've never indicated before today that whoever came to the

10 stable to take you to the commander told you the name of the commander to

11 whom you were going. You've never said that before. Is your memory

12 improving?

13 A. You have mixed me up.

14 Q. Next question is a simple one.

15 A. I am telling you that I have nothing against Fatmir Limaj. I am

16 free and alive. Nothing wrong. I have said nothing wrong against him,

17 other than what I went through, what I saw.

18 Q. You've indicated today that the person you saw, the commander,

19 asked you who took you and why you were taken. Do you remember saying

20 that today?

21 A. Yes.

22 Q. And you said today that you told the commander you didn't know

23 why you had been taken.

24 A. Yes, that's right.

25 Q. Is it right? Are you sure that's how you remember it?

Page 1214

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Page 1215

1 A. That he asked me, commander asked me, Who brought you here? Who

2 took you from your home, he meant, and for what reason?

3 Q. Yes. What did you tell him?

4 A. I said, I don't know. I told Fatmir Limaj, I don't know.

5 Q. Then kindly explain how it is that you told the second

6 investigator a story about - I'm not going to read the name out - you

7 told a story about a person driving tractors, collecting illegal wood,

8 being stopped by Serbian police officers, taking away tractors, and so

9 on. You told the second investigator you gave this commander a very long

10 explanation of why you thought you'd been taken. Is that right?

11 A. I don't remember. You may mention the name.

12 Q. You see, it's one thing not to remember. I have asked you

13 carefully about your memory. It's quite another --

14 A. For the moment, I don't remember. If I do remember, I will

15 certainly tell you.

16 Q. Well, did you tell the commander you didn't know why you were

17 taken or did you tell the commander a long story about being stopped by

18 Serbs on a tractor being collecting illegal wood?

19 MR. CAYLEY: Your Honour, I'm objecting at this point because I

20 think the witness should actually be read the portion of his statement.

21 That can be done in private session rather than reading out an edited

22 version. It's very short, it's in his second statement. And he can be

23 asked about these events, because at the moment I don't think he

24 understands the question that he's being asked.

25 JUDGE PARKER: Mr. Mansfield, I think if you want to proceed that

Page 1216

1 may be useful.

2 MR. MANSFIELD: Certainly. I'm happy to do that.

3 JUDGE PARKER: Thank you.

4 [Private session]

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12 --- Whereupon the hearing adjourned at 7.01 p.m.,

13 to be reconvened on Wednesday, the 1st day of

14 December, 2004, at 2.15 p.m.

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