1 Monday, 7 February 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.29 p.m.
5 JUDGE PARKER: Mr. Whiting.
6 MR. WHITING: Good afternoon, Your Honour. Mr. Nicholls will be
7 handling the next witness and will be ready in just a moment. I just
8 wanted to raise one issue and just address the witnesses for this week so
9 the Court is aware of the schedule for this week. We had planned -- this
10 is of course a short week because we're not sitting on Friday. We had
11 planned three witnesses for the week. It has not been concluded yet, but
12 I expect that we will agree on one of the three, the shortest of the
13 three, we will agree that the witness need not be called, and if the
14 Court agrees, that the statement can go in pursuant to 89(F). That
15 leaves us with two witnesses for the week. This agreement is -- as I
16 said, it's not even concluded yet and it came up at a point when it was
17 too late to fill in another witness. I actually expect that these two
18 witnesses will be pretty substantial, pretty lengthy and that we may end
19 up filling the week with these two witnesses. So I just wanted to alert
20 the Court to that schedule. And now I leave it to Mr. Nicholls.
21 JUDGE PARKER: Mr. Whiting, thank you for that and that is
22 opportune by way of introduction to another matter I must raise. Toward
23 the end of last week we looked forward over the next two or three weeks
24 to the sitting programme. Since then, I am afraid, it has become evident
25 that I cannot sit on Thursday, the 17th of this month. I had indicated I
1 could not sit on Friday. Well, I still cannot sit on Friday, but I
2 cannot sit on Thursday either. The upside for everyone else is that you
3 have an even longer break, taken with the week following. The downside
4 for me is to keep the extra time down to one day, on the Thursday I must
5 sit from 8.30 in the morning to the evening with Judges Orie and Kwon to
6 deal with another important matter. But by that sacrifice, the
7 interference with your endeavours is limited to one day.
8 I'm apologetic to the accused in particular for this further
9 interruption, but as with the delay with starting today, there are other
10 demands on the time of the Court and the members of the Chamber, and this
11 is one of them.
12 MR. WHITING: Your Honour, if I may just address one point about
13 what the Court has just told us. We will of course endeavour to fill the
14 three days. And I believe that will not be a problem. What we have to
15 try to avoid, of course, is a witness carrying over the break and so
16 we'll do our best. We may finish a bit early on Wednesday, but I think
17 actually that we should be able to fill those three days.
18 JUDGE PARKER: Thank you.
19 Now we look to Mr. Nicholls for the next witness.
20 MR. NICHOLLS: We're ready if the witness could be brought in,
22 JUDGE PARKER: Thank you.
23 MR. NICHOLLS: Good afternoon, Your Honours.
24 [The witness entered court]
25 JUDGE PARKER: Good afternoon. Would you please make the
1 affirmation which is on the card which is shown to you now.
2 THE WITNESS: [Interpretation] I solemnly declare that I will tell
3 the truth, the whole truth, and nothing but the truth.
4 JUDGE PARKER: Please sit down.
5 Mr. Nicholls will ask you some questions to start with.
6 Yes, Mr. Nicholls.
7 MR. NICHOLLS: Thank you.
8 WITNESS: RUZHDI KARPUZI
9 [Witness answered through interpreter]
10 Examined by Mr. Nicholls:
11 Q. Good afternoon. Can you hear me, Mr. Karpuzi?
12 A. Yes.
13 Q. Thank you. If at any time you have trouble hearing me or
14 understanding me, please let me know. Can you please state your full
16 A. My name is Ruzhdi Karpuzi.
17 Q. Could you spell it for me, please.
18 A. R-u-z-h-d-i.
19 Q. Thank you. I'll ask you some questions about your background in
20 a moment and about 1998 in a moment, but first I have a couple
21 preliminary questions. Did you receive a subpoena from this Honourable
22 Trial Chamber requiring you to testify here today?
23 A. Yes, I did.
24 Q. Now, you've also given a statement to an ICTY investigator on the
25 19th and 21st of July, 2003. Is that right?
1 A. Yes.
2 Q. And were you truthful to the best of your belief and memory when
3 you made that statement?
4 A. Yes.
5 Q. You and I met yesterday and you read over your statement in your
6 own language. Is that right?
7 A. Yes, that's right.
8 Q. And you made a few corrections to your earlier statement in a
9 statement which you signed yesterday. Is that correct?
10 A. Yes.
11 Q. And were you also truthful in the statement which you made
13 A. Yes, I have always tried to tell the truth, and I am telling here
14 again that I have told the truth as much as I remember, as much as I
16 Q. Thank you. Now I'll ask a few questions about your background.
17 Could you tell me when and where you were born, please.
18 A. I was born on January 23rd, 1965, in Shale village commune,
19 Lipjan municipality.
20 Q. And which village do you live in today?
21 A. I continue to live in Shale.
22 Q. Are you married?
23 A. Yes.
24 Q. Do you have any children?
25 A. Yes, I have two.
1 Q. Could you please tell the Chamber about your educational
2 background, I mean how far you went in school.
3 A. Yes, Distinguished Tribunal, I finished the primary school and
4 then two years of the high school, because I couldn't go on with my
5 studies due to Serb repression which deprived us of the right to
6 schooling, finding various pretexts to prevent us. So that's my
8 Q. Did you perform your compulsory military service in 1988?
9 A. Yes.
10 Q. Where was that?
11 A. In Zagreb in the former Yugoslav Republic of Croatia.
12 Q. And how long did that military service last?
13 A. This military service continued for one year. Then I did three
14 more months further to that military service for no other reason than
15 being Albanian. They found reasons, pretexts, to make us do extra
16 military service.
17 Q. And while you were in the military in 1988, did you receive any
18 specialised training, any training in any particular specialty?
19 A. The Yugoslav service was such that we were trained in various
20 areas. When I was doing my service, I was in the anti-tank unit Poc was
21 called in Serbian, in short.
22 Q. Now, I want to ask you a couple questions about any political
23 involvement you may have had. In 1990/1991, that time frame, were you a
24 member of any political party?
25 A. Yes.
1 Q. Which party was that?
2 A. At the beginning there was no other political party -- at least I
3 didn't know of existence of any other, so I joined the LDK.
4 Q. Are you currently involved in politics in any way?
5 A. Yes. I am a member of the PDK after the war.
6 Q. Are you currently employed?
7 A. No.
8 Q. And are you currently involved in your village in any way in the
9 village council?
10 A. Yes. I'm deputy chairman of the village council in Shale
12 Q. And could you just briefly tell us what that entails, what your
13 duties are as deputy chairman.
14 A. Yes. The village council looks after all the problems facing the
15 inhabitants of the village, that is it takes care of all the problems
16 that the village has, the needs they have. That's it, more or less what
17 they do.
18 Q. I want to ask you a little bit now about your employment, past
19 employment. Were you employed from 1988 after you finished your military
20 service? Could you tell us what kind of work you did during that period.
21 A. I used to work in 1985 in Golesh magnesium mine. Then I did my
22 military service for 12 plus three months. After I returned from the
23 military service, I went back to the same place I used to work in the
24 past; but at that time we were involved in protests. We staged a sit-on
25 strike in the Golesh mine against the amendments to the constitution. We
1 stayed there for eight days and eight nights.
2 Q. And what year did that take place in, this strike? Or this
3 protest, excuse me.
4 A. That was in 1989. I can't give you an accurate date. It must
5 have been 8th or 21st of February. I can't give you an exact date.
6 Q. And can you tell me - you started talking about this earlier -
7 but what life was like for your -- for you and your family after 1988
8 under the Serb authorities.
9 A. It was a very hard life. We were treated like secondary-rate
10 citizens without any reasons for that. They might come to your home.
11 They might maltreat you in the very eyes of your family. In some
12 instances this happened also during the -- our employment. When we left
13 work and -- or when we wanted to go to work and get on a bus, without any
14 reasons the police officers might take you away from the bus, beat you,
15 and denounce you for failing to report to work. Life was very hard
16 indeed in that period, but before the Serb forces withdrew from Kosovo.
17 Q. And were you ever personally, as you said, maltreated in the very
18 eyes of your family?
19 A. Yes, I was not once but two or three times.
20 Q. Can you describe what that maltreatment was.
21 A. They always found a pretext, as I said, when they wanted to
22 maltreat you before the family. For example, Why did you take place [as
23 interpreted] in the strike or in the demonstration? Why find or found
24 other pretexts, as I said, to beat you in the eyes of the family and very
25 badly, they beat you very badly.
1 Q. Have you ever been in prison?
2 A. Yes, I have.
3 Q. Could you tell me when that happened to you.
4 A. This happened from 1988 to 1993 or 1994 I think.
5 Q. And how many times were you put in prison during that time period
6 that you've just told us, 1988 to 1994?
7 A. Five times I think.
8 Q. And for what offence? What did they say you had done?
9 A. For example, Why did you participate in the strike in the mine?
10 First time. Second time, Why did you protest against the amendments to
11 the constitution? The third time, for taking part in the demonstrations
12 when we wanted to show to the world what we were going through under the
13 Serb authorities. For them -- for these reasons I was condemned several
14 times, as I said.
15 Q. I'm going to now ask you some questions about your involvement
16 with the KLA. When did you first hear of the KLA?
17 A. I heard of the KLA for the first time when teacher Halit Geci was
19 Q. And do you remember approximately when that happened?
20 A. The date -- I don't remember the date actually.
21 Q. And how did you hear about the KLA in connection with that
23 A. At that time the KLA came out in the open, so to say, through the
25 Q. And did you personally read about the KLA in newspapers or
1 magazines during this time?
2 A. I remember when I saw them -- I heard about them on television.
3 To tell you the truth, I didn't have much time to deal with these things.
4 I had my own problems to tend to. Life, as I said, was hard so you
5 didn't think of doing many things other than surviving.
6 Q. I understand. At some point did you make the decision -- did you
7 decide to join the KLA?
8 A. Yes.
9 Q. And when was that?
10 A. This was after the killing of a legendary commander Adem Jashari.
11 When he laid down his life together with the lives of his family for our
12 freedom, I felt it my moral obligation to render my contribution as much
13 as I could.
14 Q. And so what did you do to join? How did you go about joining the
15 KLA after you'd made this decision?
16 A. After I made up my mind to join the KLA, I saw the ways how to
17 contact KLA members because in our region there were no KLA members. So
18 I decided to go to lower Drenica -- several times I went, in fact -- and
19 met with some KLA members. And I felt very pleased with myself for
20 making that decision and for seeing that the KLA really existed. Even
21 though we didn't want the fight, even though it was a last remedy to our
22 question, that was, as I said, the last means that we resorted to; I
23 still was happy.
24 Q. Do you remember the name of the village in Drenica that you went
25 to when you tried to join the KLA?
1 A. Yes, it was in Likovc.
2 Q. And who did you meet there?
3 A. I met some KLA members. To my knowledge, there was someone
4 called Raketa who took down my personal details, and he said that We know
5 all the people want to fight, but we regret that we cannot take you now
6 because we don't have enough weapons, ammunitions.
7 Q. And you said earlier that you went several times in fact to the
8 Drenica. Can you --
9 A. Yes, that's right.
10 Q. Can you explain that a little bit about the other times that you
11 returned to Likovc.
12 A. Every time I went there I met some members of the KLA. I greeted
13 -- they greeted me very warmly, and they liked it that people were
14 interested to join them. This is how it went. Each time I went there,
15 they regretted that they couldn't give me a weapon and they asked me
16 whether I was in a position to find a weapon myself. Only then they told
17 me I could join them. So it was a voluntary subscription -- joining.
18 Q. And do you remember what date it was that you were able to
19 formally join the KLA?
20 A. Yes, 18th of April, 1998.
21 Q. At that time were you issued with a weapon?
22 A. Yes. They didn't give me ammunitions, only a small-calibre
23 hunting gun they gave me.
24 Q. What about a uniform?
25 A. No, they didn't.
1 Q. And could you describe, please, immediately after April 18th when
2 you joined, what were your duties? What did you do?
3 A. During that period I stayed in Likovc my duty was to reconnoitre
4 the terrain, see how many Serb forces were passing through in the
5 direction of Skenderaj, what means they had. These were my duties as a
6 new recruit officer, so to say.
7 Q. And were you given any training or instruction on how to perform
8 these duties?
9 A. Our duty was, as I said, to see how many vehicles were passing
10 by, whether the Serb paramilitary or military forces were approaching the
11 village or were trying to enter the village, or to go to houses we could
12 see from the place we were located to find out whether they were
13 committing some massacres and so on.
14 Q. Thank you. My question -- maybe I wasn't completely clear --
15 was: Did anybody give you any instructions on how to perform these
17 A. I'm not very clear about the instructions. What do you mean?
18 Q. I just mean: Did anybody tell you where to go, what to look for?
19 Any type of instruction on how you were to perform these duties of
20 protecting the village?
21 A. At the beginning, no. Together with other comrades we were
22 there. One of them who had been there for a longer time, they told me to
23 go with them and showed me where to stay, what to do, not anything in
25 Q. Now, do you know a man named Sulejman Selimi?
1 A. Yes, I do.
2 Q. And what was -- does he have a pseudonym?
3 A. Yes, his pseudonym was Sultani.
4 Q. Have you met him in person ever?
5 A. During that period, once.
6 Q. Can you please describe that meeting, what happened at a meeting.
7 A. Yes. I don't remember accurately the number. I think we were
8 about 20 soldiers. One day he told us, Guys, we are members of the
9 Kosova Liberation Army. Our duty is to protect the people. We have
10 sacrificed our lives to protect the people, therefore your duty is to be
11 very polite with the civilian population, to defend them. We are their
12 sons. These were more or less the words he told us.
13 Q. And what was Sultan's position at that time in Likovc?
14 A. I remember he was a commander of a firing point.
15 Q. During this point in time around April 1998, how common was it
16 for soldiers, KLA soldiers, to use pseudonyms?
17 A. It was quite common because -- and the reason for that was
18 because we as members of the KLA should have a pseudonym, because if
19 others knew who we were, the respective families -- not only the
20 respective families but the whole neighbourhood and the village would
21 have been burned to ashes by the Serbian forces. That's why we had the
23 Q. Did you use a pseudonym in April 1998?
24 A. Yes.
25 Q. And what was your pseudonym?
1 A. My pseudonym was Shala. I didn't choose this pseudonym; the
2 soldiers who were there referred to me, This guy from Shala, go and ask
3 this guy from Shala. This is how it came that I assumed this pseudonym.
4 Q. Okay. And just to be clear, This guy from Shala, meaning this
5 guy from the village of Shala where you were from?
6 A. Yes.
7 Q. I'm going to ask you now some questions about the next month, May
8 1998. Right now talking about the first week in May 1998, do you
9 remember where you were?
10 A. Yes, I do. I was on temporary leave to see my family, to inform
11 them that I had joined the KLA. So I remember it was the first week of
12 May for this purpose.
13 Q. Okay. And temporary leave to see your family. Which village
14 were you in when you were visiting your family?
15 A. In Shale.
16 Q. I'm going to ask you now about May 8th. Do you remember that
18 A. Yes, I remember.
19 Q. What happened on May 8th, 1998, with you? Where did you go?
20 A. As I said earlier, on the 8th of May I was home to see my family
21 to inform them that I had joined the KLA. Then when I was there I heard
22 detonations and then I felt it an obligation to leave my family and to go
23 and help those people who were fighting. I didn't know who was fighting,
24 I just knew that there was fighting.
25 Q. And did you learn where the fighting was taking place, where the
1 fighting was?
2 A. It was in the direction of Komorane, Nekovce. When I went there
3 in person, I saw that the fighting was taking place in Lapusnik gorge.
4 Q. All right. Could you tell us please as much as you remember
5 exactly how you got from your village, Shale, to Lapusnik.
6 A. I went by my own tractor. I drove up to the vicinity of
7 Kizhareke village where I could hear very strong shelling. And then I
8 took up a route through the mountain and then I met some KLA members.
9 Q. Do you remember the names of the KLA members you met?
10 A. Yes, three of them, yes, I do.
11 Q. Could you tell us who they were, please.
12 A. Yes, I can. They were Ymer Alushani, Enver Mulaku, and Ramadan
13 Zogu. There were two others, but their names I don't remember.
14 Q. Do you know if Ymer Alushani had a pseudonym?
15 A. Yes, his pseudonym was Voglushi.
16 Q. Now, when you met these five other KLA soldiers you've just told
17 us about, what did the six of you do? Where did you go?
18 A. I arrived a little bit late. They were already fighting when I
19 went there. When I joined them they didn't know where I was from, but
20 there were many -- they were looking for someone to help them. They
21 didn't have enough munitions. I started to fight them [as interpreted]
22 even though at that moment I didn't know them. Then afterwards, on the
23 next day and afterwards I started to know who they were.
24 Q. And I think there might be a mistake in the transcript. It says
25 "I started to fight them." I think it should be I started to fight with
1 them. Is that right that you started to fight alongside --
2 A. Yes, yes. I meant I joined them in the fight.
3 Q. And where were you, as precisely as you can remember, when you
4 began fighting with these men?
5 A. I don't know how to explain. There is this road Pristina-Peja
6 road. It's on the left side of this road. There is a rock, a very big
7 rock. In the vicinity of that rock there was a place. We didn't -- we
8 couldn't stay in one place alone, we had to move in order to fight the
9 Serbs. We had to change positions from here to here for the Serbs to
10 think we were more in number than we really were.
11 Q. Before this date, had you ever been to Lapusnik before?
12 A. No, I'd never been there before.
13 Q. Can you describe the battle, how it was from your perspective
14 that day.
15 A. There is only bad fighting. I don't know. The fighting was very
16 fierce, in fact. We who were positioned on the left side of the road --
17 there was firing coming on both sides, on the left and on the right side
18 of the road. So this is how fighting went on until the evening. They
19 used all means -- all the means they had at their disposal, heavy
20 artillery, heavy weapons, everything.
21 Q. And you say "on the left side of the road." The left side of the
22 road if you're going in which direction?
23 A. In the direction of Pristina to Peja.
24 Q. And how long did this fierce fighting continue for?
25 A. Until evening of that day. They went on the next day as well.
1 Q. How long -- how many days in total did the battle last?
2 A. On the 8th and on the 9th. You mean about that fighting in
3 Lapusnik gorge?
4 Q. Yes.
5 Yes, after the 8th and 9th, did you say in Lapusnik or did you go
6 anywhere else?
7 A. I stayed in Lapusnik all the time until I was injured.
8 Q. We'll talk about when you were injured later, but what was the
9 date, what was the time, of your injury?
10 A. I was injured on the 26th of July, 1998.
11 Q. After May 9th, after the battle ended, did you communicate
12 further with Commander Selimi?
13 A. No.
14 Q. Did you -- let me ask that again. Did Commander Selimi know that
15 you were staying in Lapusnik?
16 A. He knew only that I was visiting my family. He did not know that
17 I stopped there. Then I -- through someone who was there, I -- a
18 soldier, I informed him -- because as friends we had to inform each other
19 whether we are leaving the unit, whether we are going home, so that the
20 unit knew the whereabouts of that person.
21 Q. And did you receive any response from Commander Selimi?
22 A. Yes. I did not wait for an answer, I just informed him that I am
23 alive and that I had stayed in Lapusnik gorge. This is what I told him
24 through that soldier.
25 Q. I understand. I just wonder if you received any messages in
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
2 A. I did not receive any messages from him, but I also knew that he
3 had no grounds to object to it. I had to inform and I informed him that
4 I am alive and that I was in the Lapusnik gorge. So he had no reason to
5 say why I stayed there and why I didn't go back to the unit.
6 Q. So you received no message at all. Is that right?
7 A. There was no need for somebody to send me a message, whether I
8 should stay or not. The important thing was for him to know where I was
9 and he knew where I was. So that was, in itself, an answer.
10 Q. Now, after the battle, was there any activity undertaken to
11 defend Lapusnik from further attacks?
12 A. I'm not clear about your question, about the fighting. What do
13 you mean?
14 Q. I mean, after the battle ended - let me put it this way - what
15 were you told to do as a soldier after May 9th?
16 A. Nobody told me what to do. I stayed in the Lapusnik gorge to
17 protect that population there, and all the people who were there -- some
18 of the Lapusnik villagers invited us to their homes and gave us to eat.
19 And some of them joined the -- our group, some of them carrying a weapon,
20 some of them carrying an axe. There have been instances when people --
21 civilians said, I am staying close to you. If you get killed in the
22 battle, I'll get your weapon and fight.
23 Q. Now, during this time after May 9th, were -- was there any -- was
24 there any digging of trenches, any building of fortifications, anything
25 like that?
1 A. Yes.
2 Q. Can you describe that.
3 A. Yes. Initially from the asphalt side of the road, we tried to
4 take up a position. Then we -- from our positions, we went to the other
5 positions, meaning that we communicated with each other in the two
7 Q. I was going to show you this later, but maybe I should show you
10 MR. NICHOLLS: If we could have image 8 from P1. On the ELMO,
11 please. That's good I think.
12 Q. Now, did I show you this photograph yesterday, sir?
13 A. Yes.
14 Q. If you want, it may be easier, you can look to your left. Not on
15 the computer screen but to your left. You can see the picture there.
16 Could you -- do you recognise where this place is in the photo?
17 A. Yes.
18 Q. Where is it?
19 A. This is in Lapusnik.
20 Q. If you can, see if you can, find the positions you were just
21 telling us about. You talked about after May 9th you started building
22 fortifications and there were two positions which communicated with each
23 other. Can you point to where those positions were.
24 A. I can't see them very clearly here because it's an aerial image.
25 It's hard for me to define [as interpreted] it properly.
1 Q. Well, take your time to look at it and see if you can find them.
2 Do you see the Peja-Pristina road on this photograph?
3 A. Yes. I can't see very clearly -- yes, I can see the
4 Peja-Pristina road. Initially the fighting was taking place here
5 approximately, because as I said I cannot see it clearly.
6 Q. All right. So is the area you were just pointing out one of the
7 positions you were telling us about that were established?
8 A. I'm not clear about the question.
9 Q. Okay. The question is -- and maybe you can't do it, but you
10 talked about two positions after May 9th that communicated with each
11 other when fortifications were being built. Can you find either of those
12 two positions on the aerial photo?
13 A. I'm not clear about the two points. I am talking about the
14 second day, about the 9th of May. But after the 9th of May the positions
15 that I spoke about, the trenches, I cannot tell them here. I cannot find
16 them here, the place where they were.
17 Q. You're not able to indicate on this photo where the trenches were
19 A. It's not that I do not want to, but I cannot find them in the
20 map, in this terrain that I see.
21 Q. Okay. Well, we can remove that for now and we'll probably look
22 at it a little bit later.
23 Now, when did the digging of trenches begin?
24 A. When you mean? The time when? On the next day, everybody
25 started to build a trench for himself, to dig his own trench.
1 Q. And how long did that go on for? How long were people digging
2 trenches after May 9th?
3 A. As I said, everybody started to dig a trench for himself. I
4 answered this question that initially everybody dug up a position for
5 himself, for a single person. Then we dig more -- dug more -- dug more
6 in order for these trenches to communicate with one another, for the
7 soldiers to pass on from one to the other.
8 Q. Thank you. And approximately how long did this activity take?
9 In other words, how long were people digging trenches after May 9th in
10 order to allow soldiers to communicate and pass from one to the other?
11 A. I don't remember how long.
12 Q. And do you remember how far these trenches extended, how long
13 they were?
14 A. You mean between one another -- among each other or what?
15 Q. Yes. What was the length of the trenches between the points?
16 A. They were very close to one another. Maybe 10, 15 metres one
17 from the other, that was the distance because we were few soldiers in the
19 Q. How many soldiers approximately were present in Lapusnik at this
20 time just after the battle of May 9th?
21 A. We were around 12, 13. I can't give you an exact number. It was
22 approximately that number.
23 Q. And after this date, did the amount of soldiers increase,
24 decrease, or stay the same in Lapusnik?
25 A. I said a little bit earlier that the number changed on a daily
1 basis, because many people came asking to join the KLA. But as I said
2 when I spoke about Drenica, we were there -- were in the same situation
3 having in a day 10, 12, more soldiers -- people wanting to join us. We
4 didn't have enough weapons to give them. We had only enough weapons for
5 ourselves. Some civilians came there, some of them carried their own
6 weapons, ammunitions, some of them came with axes, as I said. Just
7 because they wanted to join, we couldn't tell them to stay or to leave
8 because there was not enough munitions, as I said. Those who had arms,
9 joined -- could stay.
10 Q. Was -- how long did Voglushi remain in Lapusnik?
11 A. Until he was killed.
12 Q. When was he killed?
13 A. He was killed -- he died a heroic death on the 26th of July,
14 1998. Many of us maybe wanted to have the same fate, to die heroically
15 like him.
16 Q. Was he a good soldier?
17 A. He was a very good soldier. He was of a heavy build. He had a
18 strong voice. He was, as we said to [as interpreted] him, the lion of
19 Lapusnik gorge.
20 Q. You said "we said of him." Is that the way the other soldiers in
21 Lapusnik thought of him not just you? Is that what you mean?
22 A. We called him "Voglushi," but this is what -- we looked upon him
23 as being the lion of Lapusnik, as a brave, very brave person.
24 Q. And what was his position in Lapusnik after May 9th?
25 A. Initially he was one of us, a soldier, because there was not any
1 command organisation there. There was no one to lead us. He was a
2 soldier just like all of us.
3 Q. And you said "initially he was one of us, a soldier just like all
4 of us." Did his position change over time?
5 A. Yes. Seeing that he was -- he enjoyed the respect of all of us,
6 he was from Komorane, from Bushat village, he knew the terrain. The
7 people knew him and respected him greatly. We -- therefore, we, all of
8 us, the comrades there who felt the need to have someone in the
9 leadership, someone to be as the leader of our unit, we decided to elect
11 Q. And what kind of leader was he in Lapusnik?
12 A. After our proposal we asked him to lead us since he knew the
13 terrain very well. The people knew him, he enjoyed great authority in
14 that region. So we asked him whether he was willing to be our leader, to
15 show us the way and such things.
16 Q. Thank you. I'll ask you now about the 18th of May and whether
17 there was fighting in Lapusnik on that date.
18 A. Yes. I don't remember exactly the date. I am not sure whether
19 it was 18th or the 19th. There was fighting between us and the Serb
20 paramilitary forces. The fighting was very severe. It lasted until the
21 10th or 11th p.m. [as interpreted]. They the Serb forces wanted to know
22 whether we were still there. They wanted to sound out the situation, so
23 they attempted to penetrate again the Lapusnik gorge.
24 Q. I saw you just wincing for a moment, sir, and I know that you
25 suffer still from your injuries. So please let me know if you don't feel
1 well, if you feel ill, if you need a break, anything like that. I know
2 it's sometimes difficult for you to stand or sit.
3 A. It was difficult for me even during the war. But despite our
4 pains, despite the injuries we have suffered, we want to testify here to
5 the truth, to the reality that we know of. This pain is with me
6 constantly, but I can go on.
7 Q. Thank you. Just let me know if you need --
8 A. If you think we can have a break, of course, like all -- we can
9 take a break.
10 Q. Well, I think we'll probably take one in about 15 minutes, but if
11 you're in pain or if you don't feel well at any time, just let me know
12 and we can probably take a break early.
13 A. I understand. Thank you.
14 Q. Could you please describe in a little bit more detail the attack
15 on Lapusnik by the Serb forces that you were just talking about. What
16 type of weaponry did they employ if you remember?
17 A. Of course I remember. All kinds of weapons. They used all kinds
18 of weapons. In the beginning, they did not use rockets but they used
19 mines and shelling and all kinds of weapons. There were -- there was
20 fighting there. We were in the defence line. We were defending the
21 population from the Serbs, and they were shelling us from far away with
22 rockets and mortars and whatever they had at their disposal. They used
23 all of their weapons.
24 Q. And how did you defend yourselves? What weapons did you have and
25 what did you do?
1 A. The reality is that you cannot believe what kinds of weapons we
2 had and what kinds of weapons we used to defend ourselves. They had
3 modern weapons, while we had light weapons. But fortunately, because God
4 was on our side, God saved us. Because the weaponry we had -- the
5 weaponry they had was so heavy, it is unbelievable that we had only two
6 casualties, two people who died. It's completely -- it takes me -- it
7 takes my breath away when I think about it.
8 Q. And at this battle, around the 18th of May, how many KLA soldiers
9 were there in Lapusnik fighting back against the Serb forces?
10 A. I can't say exactly. It might have been 20 of us, plus/minus
11 three of us, three soldiers. I can't say precisely how many soldiers
12 there were. It's been a long time since the war, and we've had a lot of
13 difficulties since the war. So I can't remember all the things. And in
14 fact, after the war I wanted to forget everything about it because when I
15 went home I could see the houses burnt down, the people who were killed.
16 I didn't want to remember all those bad things.
17 Q. And following on from the 18th of May after this battle, you
18 talked about how after the 9th of May villagers came and people came to
19 try to help. Following the 18th of May battle, what happened to the
20 numbers of soldiers in Lapusnik? Did it grow, shrink, remain the same?
21 A. I responded to this earlier. The number of the members of the
22 KLA increased every day.
23 Q. And as these numbers increased, were any other soldiers -- any
24 other leaders, excuse me, selected by the soldiers in addition to
1 A. What period are you talking about?
2 Q. In the time frame, say, the weeks after 18 May 1998.
3 A. Yes, I understand. I don't remember the exact time, but several
4 weeks after the 18th of May Voglushi proposed Qerqizi - his pseudonym was
5 Qerqizi - because he looked like Qerqiz Topulli, one of the Albanian
6 fighters against the Turks, Osmanli Turks. And Ymer proposed in our
7 presence, he said that, This person can lead us properly. And we agreed.
8 We supported his idea, Ymer's idea, because Ymer was the person
9 responsible for us at that moment and we thought as Ymer proposed him, he
10 knows him, so it's the right decision.
11 Q. And what was Qerqizi's real name?
12 A. Isak Musliu.
13 Q. When was the first time you met Isak Musliu?
14 A. I can't remember exactly whether it was the first day or the
15 second day, I mean the 9th of May. I can't remember exactly whether it
16 was the 8th or the 9th of May.
17 Q. And how long was Isak Musliu, Qerqizi, in Lapusnik while you were
19 A. All the time [as interpreted]. He was all the time in Lapusnik
20 [as interpreted] until the battle when the gorge fell, but then he went
21 to other villages, to Rahovec, to Fustica. He went there to help with
22 other soldiers of the KLA.
23 Q. And just to be very clear, the battle when the gorge fell is 26th
24 July 1998?
25 A. Yes.
1 Q. And what kind of a leader was Qerqizi?
2 A. Qerqizi was our leader. We needed somebody to lead us so that we
3 would not be an army of vagabonds or people who are not organised. We
4 needed somebody to be in charge.
5 Q. And how did you personally feel about it once Isak Musliu had
6 become in charge?
7 A. Everybody felt good because we wanted this army to take the form
8 or the shape or -- of a real army, of a full, a complete army. And we
9 had to know who to look up to.
10 Q. Thank you.
11 MR. NICHOLLS: Your Honours, it's a couple minutes early; I think
12 maybe the witness would not mind a break.
13 JUDGE PARKER: Very well. We'll have our first break now,
14 resuming at 4.00.
15 --- Recess taken at 3.41 p.m.
16 [Witness stands down]
17 --- On resuming at 4.02 p.m.
18 MR. TOPOLSKI: Your Honours, I've just asked for the witness to
19 remain out of court. I've raised this with Mr. Nicholls and we both
20 think that it is appropriate that he should remain out while I raise a
21 matter on the transcript. Could I draw your attention to line 13 at page
22 25. Our interpreter heard the words after the words "all the time,"
23 which now reads "full stop, He was all the time in Lapusnik." Our
24 interpreter heard the words "apart from when he went to Rahovec to help."
25 Now, we will listen to the tapes overnight. This is of something
1 of particular significance in the case of Musliu, and therefore we
2 thought it appropriate to raise it in a slightly equivocal manner at the
3 moment until we've been definitively able to listen to the tapes and, we
4 hope the Court would agree, more appropriate to raise it absent the
5 witness. I don't know if Mr. Nicholls wants to go back over this point
6 at this stage or not. It's a matter for him, of course.
7 JUDGE PARKER: Mr. Topolski, thank you for that. I think it was
8 properly raised in the absence of the witness. Subject to anything Mr.
9 Nicholls wants to say; he shows no signs of needing to say anything --
10 MR. NICHOLLS: No, Your Honour.
11 JUDGE PARKER: -- the idea of having the tape checked overnight
12 is the practical course to take to see whether there is or is not
13 something that needs clarifying.
14 If we could have the witness, please.
15 [The witness entered court]
16 JUDGE PARKER: Yes, Mr. Nicholls.
17 MR. NICHOLLS: Thank you, Your Honour.
18 Q. Just before the break you were telling us about how you felt when
19 Isak Musliu became a leader. After that in June and July, how often did
20 you see him in Lapusnik?
21 A. He stayed all the time there with us. He helped us a lot. He
22 gave us courage, and very often he used the words "it's God that has
23 given us the soil, not the Serbs." And when we were fighting, he would
24 sing together with Ymer. They were fighting and singing and that's what
25 gave us courage. We became stronger when we heard them singing in the
1 midst of us.
2 Q. And so just to be clear, during this time when he was in Lapusnik
3 in June and July all the time, did you see him on a daily basis, weekly,
4 or how often did you actually see him in person?
5 A. Every day.
6 Q. Thank you. And what part of Lapusnik was he a leader of or in
7 charge of? All of it or part of it? Can you describe the area.
8 A. Yes. He was only in the part where we were, because there were
9 several units in Lapusnik. There was Guri, Pellumbi, Lumi, ourselves.
10 He was responsible only for the narrower part of Lapusnik, the narrower
11 point of Lapusnik.
12 Q. And is that on the same side of the road, the Pristina-Pec road
13 that you were telling us about earlier, on the left side heading towards
15 A. Yes.
16 MR. NICHOLLS: Just a moment.
17 Q. And you've talked about the names of some units, Guri, Pellumbi.
18 If you remember, what was the name of the unit that Qerqiz was
19 responsible for, your unit?
20 A. Our unit was called Celiku. During the first fightings on the
21 8th and the 9th of May, we felt very strong, like steel; that's why we
22 were called Celik, because of that. Celik means steel.
23 THE INTERPRETER: Interpreter's explanation, Celik means steel;
24 the last part was interpreter's explanation.
25 MR. NICHOLLS:
1 Q. And did your unit also have a number?
2 A. During that period -- in fact, it was Celiku 3.
3 Q. And can you just tell me where the other units you've mentioned
4 were. The Pellumbi, Guri, and Lumi, where were they stationed?
5 A. Yes. At the edge of our position, there was Guri and Pellumbi on
6 the right. There was the Pristina-Peja road; on the right of that was
7 Guri and Pellumbi. I'm not sure but the Pellumbi unit was under us.
8 Q. What do you mean that the Pellumbi unit was under you?
9 A. One Pellumbi unit was below our area. It was a hilly area, so at
10 the bottom there is a place called Komorane -- Kishna Reka/Komorane.
11 There was a Pellumbi unit there.
12 Q. Let me find a map for you and we'll see if you can mark
13 approximately where these units were.
14 [Prosecution counsel confer]
15 MR. NICHOLLS: Could you put that on the ELMO, please.
16 Q. Okay. Look at that map for a moment, sir, that's map 6 from P1.
17 And I have not shown you that map before, have I?
18 A. No.
19 Q. If you can, could you just look at that map and see if you can
20 see where the relative positions were of Celiku 3, the Pellumbis, Guri
21 and Lumi units.
22 A. In the places I touched, there were the units Guri, Pellumbi in
23 the places I'm going to show now. Guri, Pellumbi, and Lumi.
24 MR. NICHOLLS: Could I have the witness be given a pen, please.
25 Q. And could you just mark with a "P" where the Pellumbi units were.
1 A. [Witness complies]
2 MR. NICHOLLS: And for the record, the witness has marked what
3 looks like a P next to Kishna Reka. Maybe if we could give the witness a
4 ballpoint pen it might be easier for him to write it. We have one over
6 Q. And could you please mark with a "G" where the Guri units were.
7 A. [Witness complies]
8 Q. I'm not sure that's legible. Sorry, if we can give you a better
10 And can you mark with an "L" where the Lumi units were.
11 A. I am writing these letters down approximately because I can't say
12 exactly where they were. But in the Lapusnik area, these were the units
13 that were active there.
14 Q. Thank you. And could you also mark a "C" where your Celiku 3
15 unit was stationed.
16 A. [Witness complies]
17 Q. Thank you. Now, I thought earlier when you were talking about
18 the Pellumbi units you were showing a range where those units were
19 stationed. Is there anywhere else where that Pellumbi units -- you
20 remember being stationed?
21 A. I don't understand.
22 Q. I may have misunderstood earlier. I thought you were pointing to
23 a different place where there were also Pellumbi units. And can you tell
24 me, where you've marked the P by Kishna Reka, is that the only place you
25 remember the Pellumbi unit being stationed or were they anywhere else?
1 A. No. This was part of Pellumbi, but there were Pellumbi units
2 beyond the asphalt road. But I did not have direct contact with them.
3 But I know that beyond the asphalt road there was Guri, Pellumbi unit,
4 and Lumi. So where I put the P letter, there's where the Pellumbi unit I
5 knew was.
6 Q. And just to be clear, what you mean beyond the asphalt road is
7 these other units is the other side of the Pristina-Peja highway. Is
8 that right?
9 A. Yes.
10 Q. Other than the Celiku 3 unit you've marked and the Pellumbi unit
11 you've marked on the south side of the Pristina-Peja highway, were there
12 any other KLA units in this area operating during May, June, July 1998?
13 A. I'm not clear -- well, as far as I know, these were the ones.
14 Q. Okay.
15 MR. NICHOLLS: I'd like to give that a number and admit it, Your
16 Honour. I'm not sure which number we're up to.
17 JUDGE PARKER: It will be received.
18 THE REGISTRAR: The map will be Prosecution Exhibit P127.
19 MR. NICHOLLS:
20 Q. Let me ask you on another topic now. Do you know a man named
21 Haradin Bala?
22 A. Yes.
23 Q. When did you first meet him?
24 A. I remember this person on the first days of the fighting. I
25 can't remember exactly which date, but possibly the first fightings on
1 the 18th and 19th of May. And he said, I want to go to Korretice to take
2 my family away from that area because it's dangerous there. I will take
3 my family to Bajice. I did not see him from that time on, and I thought
4 he had been killed or anything like that. But after that I heard he had
5 been somewhere in Luznica.
6 Q. Now just to be clear, you say "on the first days of the
7 fighting," and then you talk about on the 18th and 19th of May that you
8 had a conversation with Haradin Bala. Is the first day that you met
9 Haradin Bala the first day of the fighting on the 18th and 19th of May or
10 on the 8th and 9th of May?
11 A. I said earlier that the first -- it was the first days of
12 fighting. There were several fightings that went on there at that
13 period. I remember one time when a helicopter came to observe us whether
14 we were there or not, and there was shelling every day. But I have seen
15 this person from the first days until the 18th or the 19th, if I'm not
17 Q. So does that mean you saw him for about ten days?
18 A. Approximately, yes.
19 Q. Did Haradin Bala have a pseudonym when you knew him in May 1998?
20 A. I can't remember exactly. He must have had, but I don't
22 Q. Do you remember -- well, would it help you to look at your
23 statement? Would it help you to remember?
24 A. I don't need to see it, but as I am saying -- I don't have any
25 documents here with me because I have solemnly declared here that I will
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 tell the truth. And I don't need the statements because I will only tell
2 the truth.
3 Q. I understand that you're here to tell the truth and that you are
4 -- what I mean is that you spoke about a pseudonym for Haradin Bala in
5 your July 2003 statement, and you've told me you were truthful when you
6 gave that statement. I was wondering if it would help you to remember to
7 look at your statement.
8 MR. GUY-SMITH: Well, I take it from that that Mr. Nicholls is
9 attempting to lead the witness to an answer.
10 MR. NICHOLLS: No. I'm attempting to refresh his recollection.
11 It's a topic which has come --
12 MR. GUY-SMITH: Well, then he's done it in a totally improper
13 fashion, Your Honour.
14 JUDGE PARKER: You've had an answer from the witness, Mr.
15 Nicholls, that he doesn't need to see the statement. So I think perhaps
16 you better move on.
17 MR. NICHOLLS: I wasn't sure that the witness knew the document
18 we were talking about, because he said he didn't have any documents with
19 him. I wanted to make it clear to him that I was talking about his ICTY
20 statement and whether that might help him.
21 JUDGE PARKER: Yes. Well, he says he knows what he's saying.
22 MR. NICHOLLS:
23 Q. Now, during those ten days how often did you see Haradin Bala?
24 A. I could say regularly.
25 Q. And where did you see him?
1 A. I say "regularly" because there were not thousands of us there;
2 there were only 20 or 22 soldiers during that period that we're talking
3 about. So there were not too many of us. It's probable that on a
4 certain day I did not see him, but I can say that I saw him every day.
5 Q. And where would you see him in Lapusnik?
6 A. I saw him where we were staying because in the beginning we
7 stayed around the asphalt road - we were sleeping there - and every day
8 when we were guards and we saw him when we stayed together.
9 Q. And what were his duties during the time you knew him in
11 A. The same as myself: Observe the terrain. There was a checkpoint
12 in Komorane which was 200 or 300 metres [as interpreted] as the crow
13 flies away from us, and we had to observe the area if forces were coming
14 our way, how many forces were coming our way. All the tasks that we had
16 Q. And we'll talk about that later, your tasks. Just to be clear,
17 the checkpoint in Komorane, was that a Serb or a KLA checkpoint that
18 you're talking about?
19 A. It was a Serbian checkpoint, of course, of the Serbian police and
21 Q. Now, after the last time you saw Haradin Bala in Lapusnik - you
22 might have answered this, I'm not sure - which was the next time you saw
23 him again or did you see him again?
24 MR. KHAN: Your Honour, I apologise for interjecting, but these
25 things often are easier to sort out at the earliest opportunity. I
1 believe again there appears to be an error on the LiveNote. I understand
2 that the witness's answer was not "200 or 300 metres as the crow flies."
3 It was 2 or 3 kilometres between the point and Komorane. Your Honour,
4 perhaps that can be checked.
5 JUDGE PARKER: That's another matter perhaps for overnight, Mr.
6 Khan. Thank you.
7 MR. NICHOLLS: Well, I can ask the witness that.
8 Q. Witness, was the checkpoint at Komorane 200 or 300 metres or --
9 you heard the question, or 2 or 3 kilometres? What did you say?
10 A. Approximately 2 kilometres and 2 or 300 metres. I couldn't
11 measure it exactly, of course, because I did not have the means to, but 2
12 kilometres and 2 or 300 metres as the crow flies.
13 Q. Okay. Thank you. And the question I asked you before Mr. Khan
14 stood up was: Did you see Haradin Bala again after he left Lapusnik?
15 A. Yes. I see -- I saw him in Bajice sometime around the new year
16 1998/1999, and when I saw him I was joking with him: I thought you were
17 killed. I thought you had deserted. And he said, Well, no, no, but I
18 suffer -- I have a heart condition and I have this permission to go and
19 stay with my family. That's where I saw him in this period and then also
20 when I saw him before, during the fighting.
21 Q. And when did you hear that he'd been in Luznica?
22 A. I heard it from him because I asked him, Did you desert the army
23 or were you killed? And he said, No, I am serving in Luznica but our
24 commander gave me permission to leave, temporarily leave, to stay with my
25 family for a short period of time.
1 Q. I want to move on to another topic now. You talked about
2 sleeping at the fighting positions by the asphalt road when you first
3 arrived at Lapusnik. Later on were you able to sleep and stay somewhere
4 more comfortable indoors?
5 A. Yes.
6 Q. And where was that? Where did you stay later after you weren't
7 sleeping outside?
8 A. In the beginning we stayed at our positions, but the population
9 of the village came and took us. We left two or three guards while the
10 others went to sleep to the -- at the houses of the villagers. They gave
11 us tea and food and prepared water for cleaning, for us to clean
13 Q. Who was Gzim Gashi? Do you remember that name?
14 A. Yes. He was a villager from Lapusnik.
15 Q. And did you ever stay in his -- on his property?
16 A. Yes.
17 Q. When was that, what period?
18 A. Sometime around the end, before the Lapusnik gorge fell. I
19 stayed in the oda of Gezim Gashi.
20 Q. And did you stay there for the whole -- well, for how long before
21 Lapusnik gorge fell?
22 A. You mean how long did I stay there?
23 Q. Yes. A month? A week? How long did you stay in Gezim Gashi's
25 A. I can't say exactly, but maybe a month.
1 Q. Did other KLA soldiers stay there with you?
2 A. Yes.
3 Q. About how many?
4 A. I did not hear it very well, the question.
5 Q. I'm sorry. How many soldiers approximately stayed in Gezim
6 Gashi's place, his property, during that last month when you were there?
7 A. The number of soldiers changed constantly. Sometimes there were
8 three soldiers, sometimes five, sometimes seven, another time two. So
9 there was not a constant number of soldiers staying there in that oda.
10 Q. I'd like to show you a photograph now, that's U003-4901.
11 MR. NICHOLLS: I think we can put it on Sanction and we can also
12 perhaps put it on the ELMO.
13 Q. Look at the photograph for a moment, Mr. Karpuzi.
14 A. Yes.
15 Q. Do you see a signature on this document?
16 A. Yes. Yes, mine.
17 Q. Do you recognise this document from seeing it before?
18 A. Yes. During questioning by Ole Lehtinen, the investigator, he
19 showed me this photograph, and my signature is here as well as Lehtinen's
21 Q. And was that during your interview on -- in July 2003?
22 A. Yes. But at that time the photograph was bigger and it was
23 clearer than this one.
24 Q. And also I showed you the photograph yesterday, didn't I?
25 A. Yes.
1 Q. You see the markings, the words written in Albanian, around the
2 outside of the photograph?
3 A. Yes.
4 Q. Who made those markings, those labels, of different places?
5 A. Myself.
6 Q. Okay. And what is the place we see in this photograph? What is
7 depicted here?
8 A. Ole, when he showed me this photograph, he asked me whether I
9 recognised this terrain; and I said, Yes. After he asked me questions
10 about a prison in Lapusnik, he said that the prison was here; and I said
11 to him that, I don't know anything about it but I can tell you that I've
12 stayed in this area myself. This is Gezim's house, and everything is
13 marked there, what it is.
14 Q. All right. Let's just go through the markings which you made,
15 and I hope everybody has a translation. Perhaps it's on the -- it's a
16 bit difficult to see on the computer screen for me.
17 MR. TOPOLSKI: Your Honour, I'm sorry to interrupt Mr. Nicholls.
18 I wonder if I could ask him to be - and I know he will want to be -
19 careful. Putting this in front of the witness and asking him the
20 question at the line 22: "What is the place we see in this photograph?"
21 That presupposes that is one place. I say no more in the presence of the
22 witness, but I would ask Mr. Nicholls to proceed with his customary
23 caution, please.
24 MR. NICHOLLS:
25 Q. Now, sir, if you look at the first notation you've written on the
1 top right of the page, on the top right corner of the photograph, what
2 have you written there?
3 A. The kitchen.
4 Q. And whose kitchen was that?
5 A. This was Gzim's kitchen.
6 Q. And did you ever go into that kitchen yourself?
7 A. Yes.
8 Q. And what was the kitchen -- you've labelled it as the kitchen,
9 but what was the kitchen used for at that time?
10 A. We had food there, we ate there.
11 Q. Okay. And the next building on the right you've labelled as
12 well. Could you tell us what that building is that you've drawn an arrow
14 A. Yes.
15 Q. This is the one you've labelled "Gzim's house." Could you
16 describe that building, what that was used for.
17 A. It was used by Gzim's family, but later - I mean, while I was
18 staying there - we cleaned ourselves in that house, what you call a
20 Q. And in addition to washing there, did you do anything else there?
21 A. No.
22 Q. Did you ever stay there?
23 A. It is on the same yard, and I don't understand what you mean,
24 Have you stayed there? What do you mean by that?
25 Q. That's okay. I understand that you used that place for washing,
1 that house. Okay. And below that you've written "the oda of Gzim
2 Vojvoda." Can you describe --
3 A. Yes.
4 Q. Can you describe what that building is.
5 A. This is what we call an oda, and it is used for men.
6 Q. And I think you said earlier that you slept there. Is that
8 A. Yes. Yes, that's correct.
9 Q. And what's written there in your handwriting is "oda of Gzim
10 Vojvoda," and is that correct, the last name? Is it Gzim Vojvoda or is
11 it Gzim Gashi?
12 A. His name was Gzim Gashi, but they are from Llapi and they are
13 called Vojvoda or Shalajns. That's how we called them.
14 Q. Now, did you ever do any kind of work in Gzim's compound?
15 A. Could you explain it to me, please.
16 Q. Well, in addition to sleeping there and washing there and eating
17 there, I wonder if you ever had any tasks there, any kind of duties
19 A. Yes.
20 Q. Could you describe those, please.
21 A. Yes. I kept documentation, lists of the soldiers, because we had
22 to know where the soldiers were from, in order, for example, when they
23 got killed or got wounded, we would know who they were and where they
24 were from.
25 THE INTERPRETER: Could we have one of the mikes of the witness
1 turned on, please; it's gone off.
2 MR. NICHOLLS:
3 Q. Thank you. And I'll ask you some questions about that
4 record-keeping later. But where in Gzim's compound were those records
5 kept which you've just told us about?
6 A. In Gzim's oda. The records that I kept about the soldiers, I
7 kept them in the oda. There was not too much space or too much room to
8 keep things. I kept them in the oda; that's -- there's where I kept
9 them. They were not secret documents.
10 Q. Now, if we move down on the right side you've written "the house
11 of Bali Vojvoda," and there is an arrow pointing to the house, the same
12 house or building which is labelled number 3. Can you describe what that
13 building was used for.
14 A. There were some soldiers staying there, too. We had to stay as
15 few soldiers as possible in one single place in case of shelling. When a
16 shell might fall there in one place, we saw to it that there were as few
17 victims as possible. That's why we kept a small number of soldiers in
18 one single place, to ensure a small number of victims if that happened.
19 Q. Did you ever enter this house, the house of Bali Vojvoda?
20 A. Yes, why not?
21 Q. And what would you do in that house?
22 A. During our free time when we were not doing anything, when there
23 was no fighting, we stayed there with our friends.
24 Q. And what about the soldiers who were staying there, would they
25 ever cross the road to Gzim's compound and come into the oda?
1 A. Yes, they did.
2 Q. Now, if we continue to the labels which you've drawn on the
3 bottom of the photograph. The first one is to a building which is
4 labelled 2B and you've drawn an arrow to it and labelled it as the
5 "cowshed." Can you tell me what this building -- what that little shed
6 was used for.
7 A. Yes, the owner of this house, in that place he used to keep his
9 Q. Did you ever go into that cowshed?
10 A. No.
11 Q. Did you ever enter the compound which we see there, which the
12 cowshed is part of? I'll withdraw that question; that's a really bad
14 The next label to the left which you've made is not labelled with
15 any number but it's written "bunari," the well. I think that's
16 self-explanatory. Is there anything -- any comment you have to make on
17 the well?
18 A. I know that there was a well there. We got water from that well.
19 I don't know what to say about that.
20 Q. Thank you. And continuing around the left side of the page
21 you've drawn an arrow to a white building which is marked with the number
22 2. And you've written "oda of ?" Can you tell you about that building.
23 What was that building used for?
24 A. That building was used for the soldiers to sleep.
25 Q. And do you know who owned this compound, the one we're now
1 talking about where you've written "the oda of ?" Do you know the name?
2 A. I don't know the name of the owner. I know that he was an old
3 old [as interpreted], an old man, short. I don't remember his name.
4 Q. That's fine. The building on the left side of the photo marked
5 number 1, you haven't written anything about that building. Did you ever
6 enter that building?
7 A. No.
8 Q. Now, speaking about the oda, building number 2, how often did you
9 visit that building? Let's say in July now.
10 A. I can't give you an accurate estimate of how often I've been
11 there, but I do know that I've been there several times. I've stayed in
12 that room.
13 Q. And when you say "the room, the oda," is that upstairs or
15 A. What do you mean upstairs and downstairs?
16 Q. I'm sorry. In the building marked number 2, if you remember, was
17 the oda upstairs, that's a two-storey house, or downstairs, on the ground
19 A. When you enter it from the street it was on the right side. It
20 was I think the second floor now, come to think of it.
21 Q. And what would you do in the oda there with the other soldiers?
22 Can you just describe what that room was used for?
23 A. Often after the fighting -- there was a television set there. So
24 after the fighting we were there to watch television. In our free time
25 we got together, we used to sing -- some of us used to sing. We listened
1 to them. We kind of built up some courage in those hard days.
2 Q. And just to be clear, in the compound which building 2 is part
3 of, the building with the oda that you've told us you used to watch
4 television in, did you enter ever any other buildings in that compound?
5 A. There was an antechamber and a chamber, otherwise oda; I've been
6 there many times.
7 Q. But other than the building the oda is in and the house, did you
8 go to any other buildings in the compound, detached buildings?
9 A. No, no. We didn't have so much free time. We were not there in
10 a wedding. I remember very well that, as I said, I've been in that oda
11 many times. We sang, we drank tea, we watched television. This is what
12 I remember.
13 Q. Did you ever see Haradin Bala in the oda we're speaking about in
14 the building marked number 2?
15 A. No.
16 Q. What about the Isak Musliu? Did you ever see him in the oda?
17 A. Yes, indeed, he used to sing together with Ymer Alushani and some
18 other comrades. Qerqizi sang, Ymer, and some other who knew how to sing
19 and to play instruments. They used to sing.
20 Q. Did you ever see any persons other than KLA soldiers in this
21 compound that we're talking about, the compound across from Gzim Gashi's,
22 across the road from Gzim Gashi's compound?
23 A. What do you mean? What are you talking about? Which compound do
24 you mean?
25 Q. I'm talking about the compound with the oda you would stay in and
1 sing songs in which is marked as building number 2 and you've marked as
2 "the oda of," you didn't remember the name. Did you see any civilians in
3 this compound ever?
4 A. No.
5 Q. And if you -- I know the numbers fluctuated, you made that point.
6 But can you give me an approximate number of how many soldiers would stay
7 in this compound?
8 A. I said even earlier that the number varied. In none of the
9 houses there was an accurate number, a definite number. We had to change
10 locations because I don't know how the Serb force knew, but it so
11 happened that every time we were in a house the Serbs used to shell that
12 particular house. That's why we used to change places. So I have no
13 idea how many soldiers were situated there.
14 Q. Now, I'm going to talk about another topic. We can leave the
15 document with you for the moment. While you were in Lapusnik in May,
16 June, or July of 1998, did you ever take an oath as a KLA soldier?
17 A. Yes.
18 Q. Do you remember about when that was?
19 A. I don't remember accurately whether it was end of June or after
20 -- or early July. This I don't remember. During the time I gave the
21 statement, I already pointed that out. I don't remember.
22 Q. That's right. That's fine. I'd like -- where did that -- where
23 did that oath -- where did you take that oath?
24 A. I didn't understand you. The place?
25 Q. Where were you physically when you made this oath as a KLA
2 A. We took the oath in the yard of Bali's house.
3 Q. And -- thank you. Could you look at that diagram to your left
4 now and see if you can see the place. You said "the yard of Bali." Does
5 that appear on the photograph? So if you could just point that out on
6 the photograph to your left on the ELMO if you see the place where the
7 ceremony took place.
8 A. It is not in the photo. It is approximately here.
9 Q. I'm sorry. We couldn't see that. Could you just -- maybe if we
10 make the photograph smaller. A little bit more.
11 Now, Mr. Karpuzi, if you could try to point out where the
12 ceremony took place.
13 A. It is approximately, as I said, here because it doesn't show in
14 the picture.
15 MR. NICHOLLS: And could I give the witness -- have the witness
16 be given a pen, please.
17 Q. Could you just mark with an "X" the location you've just
18 indicated, the approximate location of the oath ceremony.
19 A. Since it's not in the picture it's outside, approximately -- can
20 I do that?
21 Q. Yes. If you think you can show where it should be if we had a
22 larger photograph.
23 A. [Witness complies]
24 Q. Thank you.
25 MR. NICHOLLS: And the witness has made an X just to the top left
1 corner of the number 3 box on the photograph. And I'd ask that it be
2 admitted at this time.
3 JUDGE PARKER: Yes.
4 THE REGISTRAR: It will be Prosecution Exhibit P128.
5 MR. NICHOLLS:
6 Q. I'd like to ask you now to tell me as much as you can about what
7 you remember from the oath ceremony. And I'll start off with -- you said
8 earlier that "we took the oath in the yard." How many soldiers took the
9 oath that day?
10 A. I cannot give you an exact figure. Must have been 50, 60
11 soldiers. As far as I could estimate with my eye, 50, 60.
12 Q. Now, did you take part in the oath ceremony at all, other than
13 taking the oath? Did you perform any actions as part of the ceremony?
14 A. I don't understand your question. I'm sorry. Put it in a simple
15 form, please.
16 Q. Yes. Describe the oath ceremony in your words. What happened
17 when you arrived there?
18 A. I saw Ymeri calling all of us out and he even joked, Come on,
19 guys, we have to get together. We went there. It was the flag in a
20 mast, and together with the two soldiers we raised the flag.
21 Q. Okay. And Ymeri, is that Voglushi?
22 A. Yes.
23 Q. And the transcript says "together with two soldiers we raised the
24 flag," that's what I was asking. Did you participate in raising the
1 A. Yeah, I said what I did.
2 Q. Do you remember if Isak Musliu was present?
3 A. I think yes. I am not sure because a long time has passed, but
4 to my recollection, yes.
5 Q. Now, do you remember who administered the oath or how the oath
6 was administered?
7 A. When the investigator asked me, I clearly indicated that when we
8 went there there was this line of 50, 60 soldiers. We entered the line.
9 I asked Ymer, Can I please raise the flag because my father -- because of
10 the flag he was sentenced, so can I do that? He said, Yes, you can. So
11 we raised the flag. Someone read the text of the oath, and we repeated
13 Q. Thank you. And I know that you've answered these questions when
14 you were asked by the investigator, but I need to ask some of the same
15 ones again here in court.
16 A. Okay.
17 Q. Do you remember the text of the oath or the words of the oath
18 that you made?
19 A. No.
20 Q. Now, were there any speeches during the ceremony?
21 A. There were no speeches. I said even earlier that there was not
22 any formal speech given. I don't remember the name of Commander Celiku.
23 There was no Commander Celiku as far as I know at that time, but among
24 the soldiers there was one called Celik. And he told us, Guys, we are
25 fighting for Kosova, and that we must defend the people by all means. We
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 have to shed the last drop of our blood for the people, all the people.
2 This was how it was.
3 Q. Now, this Celiku who made a short speech, had you ever seen him
5 A. No.
6 Q. Did you talk about anything else?
7 A. I don't remember.
8 Q. Do you remember talking about the speech when you gave your
9 statement in 2003?
10 MR. KHAN: Your Honour, just a cautionary word. Of course my
11 learned friend knows what's coming next. But the witness has already
12 said he spoke to the Prosecution prior to giving evidence today. He has
13 had an opportunity to look at statements, and of course what Your Honours
14 are interested in hearing is the witness's recollection of what happened.
15 So I would point to my learned friend to be careful on this issue; he
16 would be familiar, of course, with the point I'm making.
17 JUDGE PARKER: Thank you.
18 MR. NICHOLLS:
19 Q. Do you remember talking about this short speech given by Celiku
20 when you made your statement to the investigator in 2003?
21 MR. KHAN: Well, Your Honour, my objection stands. What's
22 important is what's said to have happened at that speech.
23 JUDGE PARKER: There's nothing improper in that question, Mr.
25 MR. KHAN: Well, Your Honour, the ground of relevance --
1 JUDGE PARKER: Anything may come from it. We will proceed.
2 Thank you.
3 MR. KHAN: I'm grateful.
4 MR. NICHOLLS:
5 Q. You can answer the question, Mr. Karpuzi. Do you remember if you
6 talked about that short speech when you made your statement to the
7 Prosecution investigator in 2003?
8 A. I already told you what was said in that speech.
9 Q. I know. The question is: Do you remember talking about it to
10 the investigator in 2003 when you made your statement?
11 A. Yes, I did.
12 Q. Do you remember what you told the investigator in 2003? Just if
13 you remember it.
14 A. I already said -- told you the words that were mentioned in what
15 you call a speech.
16 Q. And let me just ask you if you think it would be helpful at all
17 to refresh your memory to look at your statement.
18 A. I don't have any statements with me here, and I already answered
19 your question I think.
20 Q. Yeah, this is a slightly different one. I have a copy of your
21 statement in Albanian. The question is if you think it would help you to
22 remember to look at that statement?
23 MR. KHAN: Well, Your Honour, one can take a --
24 JUDGE PARKER: It's all right, Mr. Khan. I'm ahead of you. I'm
25 just poised.
1 MR. NICHOLLS:
2 Q. Would it help you to look at your statement to remember?
3 A. I don't think it would help. I don't need to see the statement
4 when I know what I'm saying. I already explained to you that there was
5 not such, as you are referring to, a speech. But it was a friendly,
6 informal talk. We are the sons of the people, he said. I think I
7 mentioned that before. I believe I am clear.
8 Q. Okay. And was this person Celiku, who made the statement,
9 introduced in any way to the soldiers present?
10 A. I don't remember. He introduced himself. Someone among the
11 soldiers said, This guy is Celiku, but he was not introduced as such.
12 Q. Now, had you heard of Celiku before?
13 A. No.
14 Q. Never before?
15 A. No.
16 Q. And what was the reaction of the soldiers present to this short
17 statement by Celiku?
18 A. The soldiers welcomed this talk, this conversation, but among the
19 comrades there were some who began to joke when he said, We are the sons
20 of the people and that we must be careful with the civilians irrespective
21 of the ethnicity or whether -- whoever they are. All of them have to be
22 treated equally among us. There were some who said, What, are we going
23 to treat the Serbs like all the other Kosovars? They were making fun of
24 his words. He said, I don't want to accept this duty -- because we asked
25 him to assume responsibility. This is what you asked me about?
1 Q. We're getting there to what I asked you about, yes. How did you
2 personally react to his speech -- to his statement?
3 A. I don't remember how I responded personally.
4 Q. Well, you said that some people made fun of his words about
5 treating everybody equally. Did you think that that was a good idea or
6 -- okay. So what I'm asking is if you supported or did not support those
7 statements made by Celiku about treating civilians well, if you remember.
8 A. Yes.
9 Q. Now, who asked him, Celiku, to assume responsibility?
10 A. We, the soldiers. We asked him to lead us after that talk. We
11 asked him, Can you please lead us because you have a good communication
12 skill, you know how to speak.
13 Q. And what did he say?
14 A. After the words he told us -- after hearing the soldiers
15 retorting to his words, he refused.
16 Q. Now, did you ever learn Celiku's real name?
17 A. At that time -- afterwards, yes. Yes.
18 Q. When did you learn Celiku's real name?
19 A. I learned his true name sometime after the brigades were formed.
20 It was then when I heard -- learned his true name.
21 Q. And what name did you learn was Celiku's true name?
22 A. Fatmir Limaj was Celiku.
23 Q. After the oath ceremony where Celiku was asked to be a leader,
24 did you see him again in Lapusnik before the 26th of July, 1998?
25 A. Yes, during the fighting.
1 Q. During which fighting?
2 A. There was frequent fighting going on there. I have seen him two
3 or three times.
4 Q. And what were you doing when you saw him those different times?
5 A. I was on the front line.
6 Q. And what was Fatmir Limaj doing when he visited you or you saw
7 him on the front line?
8 A. He was fighting alongside us. Can I make an explanation, please?
9 Q. Yes.
10 A. At a period during the fighting they called him uncle, "daja," in
11 Albanian. This is the truth.
12 Q. That's your -- okay. And the two or three times when you saw
13 Fatmir Limaj between the oath ceremony and the 26th of July. You say "he
14 was fighting alongside us." Is that on each occasion?
15 A. Yes.
16 Q. And how much time did you spend fighting alongside Limaj, Fatmir
17 Limaj, on those dates?
18 A. I'm not clear. What do you mean how long? During a day of
19 fighting or altogether?
20 Q. That's right. I'm sorry the question wasn't clear. When you saw
21 Fatmir Limaj on those occasions, how long did you see him for on each of
22 those occasions?
23 A. During one fighting, I remember seeing him that day. It might
24 have lasted two, three hours, or a whole day that he was among us.
25 Q. Did you ever see him when you were not fighting, when you were
1 not in actual combat in Lapusnik after the oath ceremony?
2 A. No.
3 Q. After the oath ceremony, were there any other leaders selected
4 the way you've described Voglushi and Isak Musliu being selected to be
6 A. To my recollection, no.
7 Q. Did you ever hear Celiku referred to as anything other than an
8 ordinary soldier?
9 A. Yes. I don't remember accurately, it was September, October, or
10 November, I heard him being referred to as a commander of that area.
11 Q. Which area?
12 A. Of Brigade 121.
13 Q. Which units made up Brigade 121?
14 A. All the small groups that were there -- from Kizhareke, Nekovce,
15 Bajice, Shale, Kroimire, Pjetershtice, Carraleve, up to Luzhnice -- all
16 these merged into Brigade 121.
17 Q. Just if you can remember, can you remember the names of those
18 units which merged and became the Brigade 121, not just the locations?
19 A. No, I don't remember because I was not in each and every one of
20 them for me to know their names. This I don't know.
21 Q. Okay. You've talked about Celiku 3. Do you know if that became
22 part of the 121 Brigade?
23 A. Yes. Celiku 3, after the Lapusnik gorge battle the soldiers
24 dispersed. It was an initiative taken for every one of them to go to
25 their own respective villages where they were familiar with the terrain.
1 MR. NICHOLLS: Your Honour, it's about five minutes early. Would
2 it be a good time for a break?
3 JUDGE PARKER: Very well. We will resume just after a quarter to
5 --- Recess taken at 5.26 p.m.
6 --- On resuming at 5.50 p.m.
7 JUDGE PARKER: Yes, Mr. Nicholls.
8 MR. NICHOLLS: Thank you.
9 Q. Mr. Karpuzi, let me just ask you a few more questions going back
10 to the oath ceremony, which you said was in late June or early July 1998.
11 Now, after that oath ceremony before the 26th of July, 1998, during that
12 period of time did you ever hear of Celiku referred to as Commander
14 A. No.
15 Q. You stated that at the oath ceremony he was asked to be a leader
16 and he stated he was not prepared to be a leader. At any point during
17 that oath ceremony did he change his mind? Did he later state that he
18 would be prepared to be a leader of the soldiers in Lapusnik?
19 A. No.
20 Q. So just so I'm clear, the only thing he said about his
21 willingness to be a leader the whole time was that he was not willing to
22 be a leader?
23 A. I explained even earlier the reasons why he said, I'm not
24 prepared to be a leader.
25 Q. Right. And my question is, just to be clear, is that was his
1 consistent position the entire time?
2 A. I didn't stay all the time with him.
3 Q. We're talking about during the oath ceremony.
4 A. During the oath ceremony, after the oath -- the oath all lasted
5 one, two minutes, not more than that.
6 Q. That day of the oath ceremony at any point did Celiku state that
7 he was willing to be a leader?
8 MR. KHAN: Well, Your Honour, I've sat down for as long as I
9 could contain myself. Your Honour, perhaps it shows how little patience
10 I have, but I've tried. Your Honour, my friend has asked a number of
11 questions which amount to leading questions. He knows how to conduct
12 examination-in-chief, and the witness of course has said -- he was asked
13 to describe the events of the oath ceremony, and he has done that. And I
14 would ask that Your Honours guide my friend in relation to what is
15 permissible and that which is not. I hate to keep interrupting court
16 proceedings in the manner that, unfortunately, I feel that I have to.
17 JUDGE PARKER: Thank you, Mr. Khan. The Chamber will not give
18 any guidance of this nature. The answer given at the beginning was
19 clear. I would understand Mr. Nicholls to be making quite clear that the
20 full import of the question was understood by the witness so that his
21 answer is not subject to qualification at some later point, so that on
22 that basis this is being allowed to continue.
23 MR. KHAN: I'm grateful.
24 JUDGE PARKER: Can I just add that it is an issue where there are
25 difficulties because of translation and because of evident difficulties
1 in getting this and other witnesses to understand questions which to you
2 and I might seem clear and convey one thing, but apparently to others
3 convey something different. And for that reason, some greater liberty is
4 being shown than would be perhaps with an English-speaking witness.
5 MR. KHAN: I'm grateful.
6 JUDGE PARKER: I hope in all of this sight is not being lost of
7 fundamental truth and don't be too worried about the implications.
8 MR. KHAN: I'm grateful.
9 MR. NICHOLLS:
10 Q. You probably need me to ask that again, the question again,
11 Witness. I'm talking about the day of the oath ceremony. At any point
12 during the day of the oath ceremony did Celiku state that he would be
13 prepared to be a leader, that he would accept to be a leader?
14 A. No. I explained earlier.
15 Q. And just to be very clear, between the date of the oath ceremony
16 and the 26th of July did Celiku ever agree to be a leader?
17 A. This I don't know. I don't remember this.
18 Q. Would it help you to look at your statement perhaps, where you
19 talk about this issue? If you're having trouble remembering.
20 MR. KHAN: Well --
21 THE WITNESS: [Interpretation] I know I am telling you what I
23 MR. NICHOLLS:
24 Q. I know you're telling me what you know but you just stated in
25 response to the last question that you didn't remember. If I wonder if
1 you looked at your statement where the situation was raised if it would
2 help you to remember, if you think it would help you to remember.
3 A. If you deem it appropriate, you might bring me a copy of my
5 Q. All right.
6 JUDGE PARKER: I don't know what you are at the moment proposing
7 to do, Mr. Nicholls.
8 MR. NICHOLLS: I was proposing to give him a copy of his
9 statement because I understood the answer to be that if it's appropriate
10 he would look at it.
11 JUDGE PARKER: On what basis should the witness see that
12 statement at this point?
13 MR. NICHOLLS: To refresh his recollection of the --
14 JUDGE PARKER: And on what basis can he refresh a recollection by
15 a statement made some five years after the event?
16 MR. NICHOLLS: Because he -- perhaps we should send the witness
17 out, if I may, Your Honour.
18 JUDGE PARKER: I think not. I'm asking you a question of law.
19 MR. NICHOLLS: Well, because five years after the event is
20 closer --
21 JUDGE PARKER: It may be three years.
22 MR. NICHOLLS: Three years. Well, the statement is in 2003.
23 JUDGE PARKER: Five years.
24 MR. NICHOLLS: Five years. It's closer in time, obviously, to
25 now -- than we are today.
1 JUDGE PARKER: Let's go back to refreshing recollection, simple
2 as that.
3 MR. NICHOLLS: If he believes it may help him remember, he may be
4 refreshed with anything, including his statement.
5 JUDGE PARKER: Is that your proposition of law?
6 MR. NICHOLLS: Yes.
7 JUDGE PARKER: It's not the view taken by the Chamber. It can't
8 be refreshed in that way.
9 MR. NICHOLLS: Well, Your Honour, if the witness feels it would
10 help him to remember to look at that statement, a statement he's made,
11 signed, stated as true, and reviewed, then on that basis he should be
12 allowed to review the statement. And that's -- sorry, the practice I am
13 familiar with.
14 JUDGE PARKER: Do you have any authority to support that
16 MR. NICHOLLS: Yes, Your Honour. I don't have it at my
17 fingertips, but this is the way I would lay the foundation back home is
18 to ask the witness if the statement would help him --
19 JUDGE PARKER: Well, I think it's another area where there may be
20 some divergence between some jurisdictions that have an adversarial
21 system. The common-law rule of which I am aware is that refreshment of
22 recollection can be on the basis of a statement or more often notes, but
23 a statement made whilst the memory is fresh.
24 MR. NICHOLLS: That's not the -- that would be perhaps a past
25 recollection recorded or a contemporaneous recording. However,
1 refreshing recollection in my practice is different. It does not need to
2 be contemporaneous. It can be anything which helps to trigger the memory
3 of the witness. So you may have a witness that has gone over things, and
4 feels that it would help him. It does not need to be contemporaneous.
5 JUDGE PARKER: Well, I can only say that that's not something
6 familiar to me, the basis upon which you say this Tribunal proceeds, and
7 you can bring that to the attention of the Chamber.
8 MR. NICHOLLS: Yes, Your Honour. I'm sorry I don't have case law
9 at my fingertips about refreshing recollection here. But in other cases,
10 many times in a previous trial I was in, I was -- it was accepted to
11 refresh the witness's memory when it would be helpful to the witness with
12 his statement which was invariably made years after the events in
13 question. So it's not foreign to my practice here as well.
14 MR. KHAN: Your Honour, perhaps just to assist I would make
15 simply one comment, with your leave, which I hope would be of some
16 assistance. Even apart from the comments which Your Honour has very
17 usefully put forward, the starting point in my submission would also be
18 that the witness has had an opportunity to refresh his memory from these
19 documents because that was what precisely was done in proofing with
20 members of the Office of the Prosecution. So he has had an opportunity
21 to refresh his memory. And what you want to hear, Your Honours,
22 collectively, is the witness's statement as to the true events that
23 occurred rather than of course the Prosecution seeking to give a meaning
24 to a statement recorded over two days at which you can't see the
25 questions that were asked. Your Honour, that's the only comment I seek
1 to make.
2 JUDGE PARKER: Well, Mr. Khan, while you're on your feet, you may
3 be able to assist the Chamber. Is there any practice with which you're
4 familiar of this Tribunal which would support the position taken by Mr.
6 MR. KHAN: Your Honour, the starting point I think of course and
7 Rule 89 of the Rules that the Trial Chambers will devise is simply those
8 that would best assist the fair determination of a matter. I think the
9 starting point of course -- testimony is not supposed to be a memory
10 test. It would in my submission be not impermissible for a witness to
11 read a statement even if it was made years after the event prior to
12 giving testimony if it is thought that it would assist him in telling the
13 true facts. Your Honour, of course this statement is given five years
14 after --
15 JUDGE PARKER: I don't question that proposition.
16 MR. KHAN: Yes.
17 JUDGE PARKER: And it is usual practice.
18 MR. KHAN: Indeed.
19 JUDGE PARKER: The question then in the course of giving evidence
20 and being able to turn to that is the issue that confronts us.
21 MR. KHAN: Well, Your Honour, of course there is decisions from
22 this Trial Chambers and others -- perhaps if I have a moment I could get
23 the decisions, but when one says that they are --
24 JUDGE PARKER: Are they -- I'm trying to be educated.
25 MR. KHAN: Well, Your Honour, perhaps you're looking at the wrong
2 JUDGE PARKER: I doubt it.
3 MR. KHAN: But, Your Honour, the same proposition, in my
4 submission, would apply as a matter of logic that if testimony is not to
5 be a test of memory it shouldn't be simply the practice to put an
6 investigator's statement that's finally signed by a witness to a witness
7 in order to get him to say something; what you want to hear, of course,
8 is the witness's recollection of the events.
9 Your Honours, on the specific question as to case law, my
10 understanding is quite different from my learned friend's, that the
11 Prosecution can't willy-nilly and put previous statements to witnesses,
12 absent to showing it is necessary. And that is extremely onerous, in my
13 submission, when the Prosecution have already had an opportunity but a
14 day before to go through previous statements with a witness and to proof
15 him. In my submission, it's totally unnecessary.
16 JUDGE PARKER: Thank you for that, Mr. Khan.
17 Does any other counsel wish to add anything at this point?
18 MR. NICHOLLS: May I respond, Your Honour, briefly?
19 JUDGE PARKER: Indeed, Mr. Nicholls.
20 MR. TOPOLSKI: Your Honour, I'm seeing if I can assist you, but
21 it's taking me a little time to wade through the various potentially
22 relevant paragraphs. Would Your Honours bear with me as I do that?
23 JUDGE PARKER: As counsel can appreciate, the members of the
24 Chamber are always willing to be informed of practice as it has developed
25 in this Tribunal with which we may not be familiar immediately. That's
1 why I'm allowing these submissions. And while you're looking, Mr.
2 Topolski, I think Mr. Nicholls may have something he wishes to put.
3 MR. NICHOLLS: Briefly, Your Honour, from what I think my friend
4 was trying to say, that is not -- his argument has nothing to do with
5 refreshing recollection. Refreshing recollection is not having the
6 witness parrot what is in the statement. It has got nothing to do with
7 what he remembered and what he reviewed in a statement at an early time.
8 The purpose is not to have the witness do anything other than testify to
9 the best of his memory, the best that he remembers the truth. So the
10 fact that he has reviewed his statement yesterday, which is true, should
11 not bar his being able to look at it again if it were to assist just in
12 some way for him to remember, from his own memory, what happened. The
13 purpose is not to have him read what is in the statement but simply to
14 use the statement as a tool to remember certain things.
15 I can just say on one occasion when I previously ask him he did
16 later remember and say exactly what was in his statement. So it may help
17 him to clear up this matter which is material, I think, if he looks at
18 his statement. Now, of course the instruction to him is not, Read what
19 is in the statement and say it, or That's true, isn't it? The question
20 is, Read this paragraph, see if it helps you to remember. And the start
21 of all this, the witness said he wasn't sure if he didn't remember
22 something relating to the specific point about accepting a command.
23 So what Your Honours will hear, he may say that it helps or it doesn't
24 help. But what the testimony will be will be his memory.
25 Mr. Khan said it's not to be a memory test, a trial, and that is
1 exactly right, which is why if a witness has some difficulty remembering
2 something on the stand which he could remember with a bit of help either
3 from a statement, a book, and audio clip, anything, if that may help him
4 remember, that may help the Chamber receive evidence.
5 And I may have a citation.
6 [Trial Chamber confers]
7 JUDGE PARKER: Yes, Mr. Nicholls.
8 MR. NICHOLLS: I do have a citation which may be of assistance.
9 It's an appeals decision from Hadzihasanovic from the 2nd of April, 2004.
10 I haven't read the decision, but I believe it supports the position I'm
11 taking that witnesses, at least here, may be refreshed as a practice and
12 it can be with their witness statements. As I say, I need to look at it
14 MR. KHAN: Well, Your Honours, my recollection of that case is
15 that in fact the Trial Chamber at first instance ruled that the
16 Prosecution could not put a previous statement to a witness. The issue
17 on the ground of appeal, as I remember it, was that that was a 92 bis
18 witness and what was contended by the Defence was that portions that were
19 not included in the 92 bis witness statement should not be put to the
20 witness to refresh his memory; and that was the issue the Appeals Chamber
21 decided on. I don't believe it set aside the thrust of the Trial
22 Chamber's decision, that it was impermissible to put a statement to a
23 witness to refresh his memory. I think the focus really was -- if I
24 remember rightly, and I may be wrong - was focussed really on 92 bis and
25 how that pans out in a 92 bis witness is called to give evidence in the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 box. That of course can be checked by my learned friends who have the
2 huge advantage of having access to a database which is far more reliable
3 than our memories.
4 MR. NICHOLLS: What the whole thing appears to be, Your Honour --
5 JUDGE PARKER: Can I say before you go further, Mr. Nicholls and
6 gentlemen, because we're starting to fall down to a fairly loose round of
7 rebounding submissions, that this issue is one which has significance
8 beyond this witness or may well have in this trial. It is a position
9 which needs to be reviewed with a little care. The position in the
10 countries of which I'm aware, and at a quick count that would be eight,
11 is as I have indicated; I'm not familiar with the practice in your home
12 jurisdiction. There is nothing of which I am aware in the Rules and
13 nothing of which I am aware in any of the texts applicable to this
14 jurisdiction. That being so, I think I should suggest that we would all
15 benefit if counsel had a moment to reflect on this overnight and to come
16 to the Chamber with some more detailed submissions. I think that would
17 assist not only with this witness and to ensure that the issue concerning
18 this witness is dealt with in accordance with law, but it would help in
19 the future conduct of this trial.
20 I have just been given a copy of the relevant part of the
21 decision to which you referred and on first glance I don't know that it
22 helps any position relevant to us. But reflection with greater care may
23 throw more light upon that or any other decision that counsel are able to
24 turn up. The question is: Can we usefully proceed with the witness on
25 some other matters now or not, Mr. Nicholls?
1 MR. NICHOLLS: I would -- it would be my preference to adjourn
2 and brief this issue rather than leave this point and try to come back to
3 it. I think in -- that would be a more efficient use of time and a -- it
4 may actually save some time tomorrow.
5 JUDGE PARKER: If we can resolve this question, it certainly may
6 save a lot of time because I've allowed you to go to the edge on this
7 point several times so far despite the agitation from time to time of Mr.
8 Khan. I have done it waiting for us to reach the crunch and this is it.
9 I think we should grasp it and come to a decision. So the Chamber would
10 indeed be grateful to counsel if they would give consideration to the
11 matter, if feasible, to let us have some short written submissions, if
12 they are desired, in the course of tomorrow morning, and if oral
13 submissions thought useful after that, at 2.15 tomorrow.
14 MR. NICHOLLS: Thank you.
15 JUDGE PARKER: I'm sorry that it's necessary to adjourn
16 overnight, but I think the point is worthy of it. We will adjourn now
17 until 2.15.
18 I'm sorry, this may have gone a little over your head, Mr.
19 Karpuzi. We are having to adjourn now to sort out a question of law and
20 we would ask that you return tomorrow to continue your evidence at 2.15.
21 You'll be given more detailed guidance outside as to when to be back
22 here. Thank you.
23 THE WITNESS: [Interpretation] Thank you.
24 --- Whereupon the hearing adjourned at 6.17 p.m.,
25 to be reconvened on Tuesday, the 8th day of
1 February, 2005, at 2.15 p.m.