Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7439

1 Wednesday, 31 August 2005

2 [Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE PARKER: Yes, Mr. Mansfield.

7 MR. MANSFIELD: [Microphone not activated]

8 In this final section where I intend to highlight the materials

9 that relate to the third item that I indicated yesterday of importance,

10 namely the personality and character of Fatmir Limaj. This section has

11 of course a double relevance. And in a sense what I would like to do is

12 to run the materials in tandem in relation to two areas, the first being

13 the one I began with yesterday, namely its relevance to the substantive

14 liability within the indictment in the way that I describe, namely it

15 involves anticipating here that there has been this metamorphosis of a

16 man from responsibility to thorough irresponsibility. The second point

17 that he would be risking the vision that he had for Kosovo by these

18 actions and his own credibility.

19 That's on the one side, substantive liability. On the other side

20 of course all these materials have a considerable bearing on the final

21 matter the Prosecution addressed to you yesterday, namely sentencing.

22 And what we've done in order to again hopefully assist and reduce the

23 amount of time that is taken up orally with you is to produce overnight a

24 skeleton of this part, which I believe you now have and the Prosecution

25 have. I again -- as with other skeletons, I don't intend to read them

Page 7440

1 out but to concentrate on one or two matters within it. May I ask you in

2 that context if you be kind enough to turn to page 5 because we say one

3 of the crucial factors that you would want to have in mind, if there is

4 -- and I make it clear publicly we're putting this on the basis that this

5 is contingent, plainly, upon a finding of guilt and that is the only

6 reason we are dealing with it now. It may be not easy to understand why

7 the Defence would be addressing sentencing publicly when, in fact, of

8 course our primary submissions have been that of course Mr. Limaj is not

9 guilty. But we appreciate that you do on occasion require observations

10 about the possibility of sentence. So in deference to that, we are in

11 fact putting forward some, we hope, constructive factors.

12 The one I light upon is the one we've headed reconciliation. I

13 light upon that because it links entirely with the fourth objective which

14 I began with yesterday, the objective of reconciliation as far as this

15 Tribunal is concerned. And we say that that is of particular

16 significance in this case because, firstly, we say there is indisputable

17 evidence that this attempt at reconciliation by Fatmir Limaj was in the

18 face of - and of course his return from Switzerland - was in the face of

19 a decade of unimaginable oppression and desecration which I described in

20 detail yesterday, perpetrated by the Serb regime. And that what he did

21 when he came back was effectively an active last resort to protect

22 civilians. And it is through the protection of civilians that again is

23 indisputable what he did in the mountain areas. Again, I touched on it

24 yesterday. And also finally, of course, his attempts -- and I'll

25 highlight some of those, at a political reconciliation once the war was

Page 7441

1 over, again is indisputable.

2 So those three matters in the context of reconciliation. A

3 defence and protection force serving civilians thousands holed up in the

4 valleys to avoid, themselves, being destroyed by the Serb onslaught in

5 1998 and his political initiatives after the war, again we say

6 unchallenged during the trial and indisputable place him in a very unique

7 situation.

8 Now, what are the materials, therefore, that underlie these two

9 aspects? One related to liability, one related to any sentencing that

10 may arise later and if it does. The first material, if I may put it that

11 way, is the witness Fadil Bajraktari. He was the mountain teacher and he

12 was the one who described -- he was amongst a number who you may recall

13 have taken the trouble to come here. It's often very easy to put

14 something on paper and then for it to be relied upon in that sense, but

15 he took the trouble to come and he sat before you. You may remember an

16 emotionally charged day in which he recalled what had happened in that

17 autumn period to the children, particularly the children, and the way in

18 which shelter was provided and assisted by Fatmir Limaj, food was

19 provided, again assisted by Fatmir Limaj; schooling was provided. You

20 saw the photographs of the makeshift tents and the conditions under which

21 this was done. Medical supplies were provided, assisted by Fatmir Limaj.

22 And most of all, perhaps, and something which he has contrived to do

23 throughout and again it has a stark contrast to the allegations in the

24 indictment, is to provide hope and provide inspiration. And he did it in

25 a particular way for this individual and I merely quote one passage from

Page 7442

1 the transcript of his evidence. It comes, if you need the reference to

2 see any more of what he said but you may remember it, it's transcript

3 6886 to 6887. One of the final questions I asked him was in fact what

4 difference this has all made to his life, never mind the children's. And

5 he said:

6 "He," that meaning Fatmir, "has influenced my life a lot. I want

7 to go to an earlier period. In March of 1998, I was very sick. I had a

8 kidney problem. I was in Pristina, and I went back to my village. The

9 doctor I saw for my problem," and he names the doctor, Dervishi, "and he

10 proposed me to have an operation in order to become well again. The

11 situation in that hospital were not good. The conditions were almost

12 horrible, so this operation remained an idea. So in these very difficult

13 moments, I decided to go to my village. I wanted to be close to my

14 family, where I belonged.

15 "So also when we went to the mountains, I was feeling worse and

16 worse. A medical team came from the Red Cross, from Geneva, and they

17 took me -- they wanted to take me abroad to be cured, but Fatmir's idea

18 to have a school to teach the children made me refuse that idea. I told

19 those doctors that I won't come. I decided to stay with the children. I

20 proposed them to take two young mothers who were about to give birth.

21 "I couldn't leave those children there even if I would feel well

22 again and my kidneys would become better. I did not want that life. I

23 wanted to be close to the children because my life was with them.

24 "Believe me, the miracle happened. I did not go to the doctor

25 again. I did not need that surgery any more. The kidney stones that I

Page 7443

1 had, I passed them out myself until February 1999. So I did not need the

2 surgery any more.

3 "That's what happened to me. And today I'm as fit as a fiddle.

4 I don't suffer any more. But it was Fatmir who taught me how to become a

5 teacher, to become a teacher of those children, 'The teacher of the

6 mountain' as they called me."

7 A haunting testimony of one individual, but of course hope and

8 inspiration often springs not only eternal but from the individual that

9 is affected in this way. This was a man, Fatmir Limaj, who had his hands

10 very much on his heart and on the people he wanted to help.

11 After this, and I don't go through the detail because you have it

12 already, that is post-Rambouillet and the conference in Paris in 1999, I

13 just want to highlight some of the other things he did, that is Fatmir

14 Limaj, and we do it with considerable emphasis because of the way the

15 Prosecution suggest in some manner that this -- this individual, Fatmir

16 Limaj, is an opportunist who happens to be forced to do these things; we

17 say not.

18 He became deputy minister of defence of the provisional

19 department after the departure of the Serb forces and the arrival of NATO

20 forces and you may recall that he participated in talks concerning

21 demilitarisation. Really, this is extremely important for all the

22 reasons I explained this afternoon. Demilitarisation of an area which

23 had seen a lot of conflict of one kind or another. And within one week,

24 within one week, agreement had been reached for a process of

25 normalisation. Between June and September, three months, he helped to

Page 7444

1 disarm the very people who you might imagine would be reluctant to be

2 disarmed, given what they had faced and given the possibilities in all

3 these situations that they're frightened will be resumed in the future.

4 But -- he wasn't alone, but he was part of a team of people who helped a

5 smooth transition, and we say that is very relevant to both of these

6 tandem headings I've indicated, liability and the future should there

7 happen to be sentencing. But he didn't stop at that. The talks

8 continued. They were in London, Brussels, Rome, and Washington, because

9 the ultimate objective wasn't just demilitarisation, it was the creation

10 of a new force, of course very much in a sense exactly the reason he'd

11 returned to Kosovo: a protection force for Kosovo which still exists.

12 But to provide that, to create it, there had to be a clear mandate and a

13 clear set of parameters as to how that would operate. And a final

14 agreement was signed with Generals Clark and Jackson, names known

15 obviously to Your Honours. This was a process he described to you, he

16 participated in and helped to achieve. And he said this, transcript

17 T6057, Fatmir himself, and in a sense it is a remarkable transition. He

18 said:

19 "You can imagine, Your Honours," effectively, that to go from an

20 army that had been fighting certainly in 1999 a hugely superior force, to

21 go from that to disbanding that army and creating, he didn't use these

22 words a peace corps, because that's what it is, but the words he said,

23 perhaps an exaggeration, had "never occurred in the history of mankind."

24 Well, that may not be entirely right, but it is a remarkable

25 achievement and therefore something we would ask you to bear in mind on

Page 7445

1 the two fronts I've suggested.

2 But that again didn't end his path, didn't end what he was trying

3 to do. Because if in fact he wanted to curry favour, if in fact he was

4 merely an opportunist, the one thing he wouldn't do is what he then did

5 do, because having undoubtedly fought the Serbs as part of the exercise

6 of the return from Switzerland, he then entered with equal vigour the

7 democratic process which was in its infancy at that point, the formation

8 of political parties and elections. He became secretary for public

9 relations for the PDK. The Kosovo Assembly was being converted

10 effectively into a parliament or the kind of institution that is known in

11 many other western democracies. And his commitment to that has been

12 recognised by a large number of people, recognised clearly by the prime

13 minister of the time who also took the trouble to come here and indicated

14 that he'd played - that is Fatmir - the most crucial role after the war

15 and the most constructive person. And it's -- really does behoove you to

16 recall these words when considering the two fronts I've indicated because

17 it's very easy in these circumstances merely, as it were, to disappear

18 into the background, take a back seat. But he didn't do that. And no

19 doubt there are people in Kosovo, some, who weren't so happy that he took

20 this courageous stand. And what the prime minister in fact told you,

21 this is at transcript 6778:

22 "I'd like to say," that's to you, "that this man had the courage

23 and the bravery since the very first days after the war to extend his

24 hand to the representatives of the Serb community."

25 Imagine, the enemy; imagine the end of the Second World War and

Page 7446

1 extending the hand of friendship to the German oppressor. That's

2 essentially what he was doing, unlike some other politicians who were

3 rather hesitant at that time to do the same. So I have always admired

4 him for his courage and his readiness to do that after all what happened

5 in Kosovo, to find the strength and work towards reconciliation.

6 "Mr. Limaj is missing" from "the political life in Kosova and to

7 parliament. The minority communities have lost a powerful supporter in

8 their fight for their rights in Kosova in general, and in parliament in

9 particular."

10 And it therefore comes as no surprise, and he mentioned it, that

11 there was in an earlier stage in the proceedings before the Tribunal a

12 minority statement from those ethnic minorities in support of Fatmir

13 Limaj. But more importantly, even, that that, in other words even if you

14 may inwardly feel, well, those are his supporters, they are not all his

15 supporters but they support his vision of a multi-racial,multicultural

16 and inclusive and pluralist society.

17 It is in fact the internationalists, if I may call them that, who

18 provide the largest commendation. And perhaps if you need a reliable

19 basis, unlike, as we say, the unreliability of much of the Prosecution

20 case, a reliable basis for assessing this man, it comes from those

21 people. Since a number of them are in the final brief, I don't recite

22 them all only by name so that it can be clear who we are dealing with

23 here. One of the witnesses in these proceedings was a man called Jan

24 Kickert, an Austrian diplomat who was the acting personal representative

25 in Pristina to the European Union High Representative For Common and

Page 7447

1 Security Policy, Foreign policy and also the Security General of the

2 Council of Europe. He had a very high regard for Fatmir Limaj, for his

3 openness, for his attempts at reconciliation and for his attempts at

4 inclusivity, all terms that everyone uses. This is not somebody who's

5 pretending because these are individuals who cannot be taken in easily

6 and who make assessments regularly. And we say they are genuine

7 assessments.

8 Peter Bouckaert of the Human Rights Watch, similarly. Dan Everts

9 who was three years at the head of the Organisation for Security and

10 Cooperation in Europe, OSCE. Also it was clear from the evidence of a

11 witness who came slightly later has provided you, and if you need the

12 reference it's DL14, with a letter which was written in April 2003. And

13 may I just read a paragraph from that letter because again it is

14 compelling material. And he's describing Fatmir Limaj and how he knew

15 him during those three years and the reconstruction of the region in

16 which of course that organisation, concerned with democracy and

17 institutions of democracy, was concerned. He said this:

18 "As an active member of the Kosovo Assembly, subsequently

19 transformed into the democratically elected parliament, Mr. Limaj has

20 always advocated inclusive,conciliatory governance stressing the

21 importance of compromise and accommodation. He forcefully argued in

22 favour of his party," the PDK, "joining the joint interim administrative

23 structure, including Serb participation, which was crucial at the time

24 for achieving broad-based agreement on executive rule by UN

25 administration.

Page 7448

1 "He has also taken a firm stand against ethnic violence and

2 nationalist extremism inside Kosovo as well as with regard to the near

3 civil war in the neighbouring former Yugoslav Republic of Macedonia and

4 southern Serbia."

5 The letter goes on, but you may regard that as an impressive

6 testimonial.

7 And I turn to Carolyn McCool who had once again taken the trouble

8 to come here from Canada and did not rely purely on what she had already

9 put in her report. And again what she had to say, given her position

10 within the same organisation for security and cooperation and that she'd

11 been stationed in Kosovo from August 1999 through to September 2002. She

12 was particularly familiar, you may feel, with Kosovo and the difficulties

13 of a post-war reconciliation and reconstruction.

14 She was in Pristina between the beginning of 2001 and the end of

15 her final period in 2002. And it was in that period that she came to

16 know Fatmir Limaj and his support for the institutes of -- institutions

17 of government and civil society, and in particular his support for the

18 rule of law. And this is what she said, and there are a number of

19 citations, but it's -- the transcript begins at 6706. And I just cull

20 some of them because again we say they are compelling and impressive:

21 "Mr. Limaj became one of those leaders in Kosovo who I trusted

22 implicitly."

23 How many people could that be said of who stand before you or sit

24 before you in these Tribunals?

25 "We would talk about politics in which I found it very difficult

Page 7449

1 to talk to a lot of people, in a way that was open and candid and in

2 which he would disclose the difficulties that he had as a leader."

3 And then she goes on to tabulate the difficulties she had as a

4 foreigner. And then on the next page 6707, having described the enormity

5 of the problems:

6 "Mr. Limaj approached these problems which were enormous and

7 remained enormous. The whole question of the development of a

8 multi-ethnic society in Kosovo is one which is moving very slowly, very

9 slowly, in its resolution. Mr. Limaj's approach, more and more, as I

10 knew him was to try and resolve that -- those problems, that host of

11 problems, by talking to people. And by that, I don't simply mean

12 foreigners like me. I mean by talking with other representatives of

13 other ethnic communities, most notably the Kosovo-Serbian community. And

14 of course it's the relationship between the Albanian and the Serbian

15 people which is at the heart of the history of Kosovo since at least the

16 1980s," and which as I highlighted yesterday remains at the root in the

17 difficulties in the recent publicity of the final status talks.

18 "Mr. Limaj, in my view, and in the period I knew him developed

19 qualities of leadership, which included a vision of a multi-ethnic

20 Kosovo. And he" didn't do this by [sic] "simply sitting in his office

21 and by talking to his PDK colleagues, but by leaving his offices and

22 talking with Serbs as well as with representatives of other ethnic

23 communities, as well as foreigners such as myself.

24 "So he was one of those people that Serbian leaders were prepared

25 to talk to and he was prepared to talk to them."

Page 7450

1 She then gave examples. And then she gave this passage, again

2 very telling in the context of this case: "He grew in stature as a

3 leader, was balanced in his division of a developing multi-ethnic society

4 against some of the views of some of his constituents, which was still

5 locked in the sort of historical embrace of antipathy, indeed hatred, at

6 some levels. And he was indeed moving beyond that and prepared to talk

7 to people about how they were going to make this thing work in the end.

8 And this was, in my view, one of the things that was most interesting

9 about Mr. Limaj, is that this was not done simply for the benefit of the

10 donor community;" we say in contrast to the arguments of the Prosecution

11 yesterday, was not done to get the benefits of "pleasing the donors in a

12 post-conflict situation. One of the reasons that I felt continually

13 interested in talking with him was because it was clear that he was doing

14 this because he was developing a vision of Kosovo for the future which

15 would serve all of the people of that land."

16 And then finally she said:

17 "I remember one meeting at which Mr. Limaj in fact proposed a

18 whole plan of action whereby the Assembly of Kosovo could engage in a

19 dialogue with similar bodies in surrounding countries and jurisdictions -

20 with other parliamentarians, basically - to work on -- he mentioned

21 economic development as being the greatest priority on a regional basis

22 as well as other issues of mutual concern. And he and these Serbian

23 leaders were in fact in agreement on this kind of plan of action. This

24 was -- this was in the -- this was just before I left Kosovo in September

25 2002. And indeed, had Mr. Limaj come -- not come to be here," meaning

Page 7451

1 before you, "I believe that he probably would have pursued those plans.

2 And it may be that in the end something comes of that; we shall see."

3 And of course the hopes of the community he served plainly do

4 hang upon plans and visions of that kind. And it's a vision which of

5 course some in politics and Martin Luther King would call a dream.

6 Interestingly, in a book published by now an international -- the

7 first international Booker prize winner this year, Ismail Kadare, an

8 Albanian writer. He wrote a book entitled The Palace of Dreams. And in

9 fact it was the description, no doubt, of a regime against which he'd set

10 his own face and no doubt Fatmir Limaj would have set his face against a

11 totalitarian regime rather than a democratic one. But in the book he

12 describes the need for master dreams [sic], in other words: "Those who

13 do have have a facility to have visions that will govern the destiny of

14 states."

15 If I may end what I have to say to you with in fact the final

16 observations of Fatmir Limaj himself about this vision. It's quite

17 short. It's T6064. He said this to you:

18 "I very much believe that if we don't take the initiative of

19 creating, building trust amongst us, nothing will succeed no matter what

20 UNMIK does. I regret to say it, but in this case in Kosovo we should

21 have brave people, people who are willing to assume responsibilities upon

22 their own shoulders, and not to do things only for the sake of the

23 international community, as the case is today in Kosovo. We should do

24 things because this is in the interest and for the benefit of the people,

25 not because of the international community wanting us to do that.

Page 7452

1 Standards are for the people, for the sides. They are for the ones who

2 build life. In a word, they was some of the objectives of my

3 orientation. I think brave politicians are still missing in Kosovo,

4 politicians who should assume responsibility for the good of the people.

5 But unfortunately, the ones we have think only of their own interests and

6 this has created tension in my country. This is my personal view."

7 So may I say in summary, therefore, this is a remarkable man who

8 sits here today, a remarkable man who we say was not capable and did not

9 commit the crimes as alleged by the Prosecution.

10 But bearing in mind, of course, that the final judgement lies

11 with you, if in fact, contrary to our submissions, you feel he has played

12 a part in the allegations made against him, then we say in the light of

13 all this material, in the light of the oppression and the desecration

14 that he faced and his community faced, and in the light of the undoubted

15 help that he has provided to thousands of civilians during the war, any

16 sentence in the bracket that was mentioned yesterday should be, we

17 submit, at the very lowest level of that bracket in order to mark both

18 reconciliation and his role in it. Thank you.

19 JUDGE PARKER: Thank you, Mr. Mansfield.

20 Mr. Guy-Smith.

21 MR. GUY-SMITH: May it please Your Honours, Mr. Bala, members of

22 the Prosecution, and my colleagues.

23 About a year ago I was on a plane travelling from Vienna to

24 Pristina, a place that I'd never been before. And as sometimes I do on a

25 plane, I decided to speak to the person next to me. We engaged in

Page 7453

1 conversation. He turned out to be somebody who lived in the United

2 States who was a soccer coach, something that some of you would call

3 football, others would call soccer. And something that I was rather

4 interested in because my son had played soccer from a very, very early

5 age and this gentleman was someone who was training young men and women

6 across the country. He also was from Kosovo and had had the privilege

7 years before of playing on one of the few teams that was able to succeed

8 internationally. And he was somewhat proud of that, as well he should

9 be.

10 We had coffee with each on the plane. He showed me photographs

11 of his family. He showed me photographs of himself with other people.

12 We were in extremely close proximity to each other. When the plane

13 landed we promised that we would meet with each other, perhaps have a cup

14 of coffee with each other in Pristina, both staying at the Grand Hotel.

15 I missed him a couple of days, he missed me a couple of days,

16 notes were exchanged at the lobby. Then finally we were able to meet and

17 I spent about a half an hour, perhaps more, with not only him but with

18 his family and some of his friends where we exchanged the kind of

19 pleasantries that are exchanged between human beings. It was a very,

20 very pleasurable experience, calm, and one that I commented on when I

21 left Pristina.

22 Nine months later I was once again in Pristina. I was walking

23 down the street and somebody called my name, Gregor, and I looked and

24 there he was. And I was -- I was so, so pleased to see him. At the time

25 I was walking down the street close to the Grand Hotel with my

Page 7454

1 co-counsel. I said, Come on, Richard, come meet this man. He's a great

2 guy, Ed. He's a wonderful human being. You should really know him.

3 He's a great soccer player, he's done much for young people around the

4 world and I think you would enjoy him. We went and we spoke to each

5 other for a few minutes and then went our separate ways, understanding

6 that we would meet at the airport because he was leaving that day, as was

7 I.

8 I spoke a little bit to Richard about this man, not much. We

9 went about our day and then when we got to the airport I saw him again

10 and I went up to him and I said, Hi, Ed, how are you? And he said, Mr.

11 Guy-Smith, do you know who I am? And I went, Yes, you are -- then I went

12 Oh my God, oh my goodness. He said, I didn't mean to embarrass you, but

13 you know who I am. I said, Yes, of course. You are the gentleman who I

14 have been to the Detention Unit more than once, more than twice, more

15 than three times. You are the gentleman who was my translator to talk to

16 Mr. Bala.

17 Now, if I was called to testify and if there was any question at

18 all up to the moment that I was standing at the airport and this man said

19 to me, do you know what I am? My answer would have been of course I know

20 who he is. This is Ed, the man who plays soccer. And if somebody had

21 asked me the question, well how sure are you? My response would have

22 been simple, 100 per cent. You don't even have to think about the words

23 would have been; you can tell by my actions themselves that my response

24 would have been. 100 per cent. 100 per cent accurate, I would have

25 thought; 100 per cent wrong.

Page 7455

1 It has been said with regard to the issue of eyewitness testimony

2 that "implicit in the acceptance of this testimony is solid evidence is

3 the assumption that the human mind is a precise recorder and storer of

4 events."

5 Unfortunately it's not.

6 "To be mistaken about details is not the result of a bad memory,

7 but of the normal functioning of human memory." As we have seen, "human

8 remembering does not work like a video recorder or a movie camera. New

9 information, oftentimes misleading information, is not only added to

10 memory, it actually alters the conduct -- content of what the subject is

11 able to remember." The upshot is that even honest eyewitnesses who try

12 to be objective, who believe what they are relating, may in fact remember

13 incorrectly and produce misinformation.

14 Courts have recognised this. Courts have recognised the frailty

15 of eyewitness identification, and this Chamber itself has commented on

16 how an analysis of identification is something that will require serious

17 scrutiny and great, great care.

18 Most of the people who have testified here with regard to the

19 identity of Shala have recounted a tall man, a dark man, a man with bad

20 teeth. Few have remembered the colour of his eyes. As a matter of fact,

21 I believe that only one mentioned that his eyes were blue/green, somewhat

22 of an unusual colour.

23 Most of the individuals who claim that the man who they had

24 unfortunate, indeed unfortunate, experiences with, who they knew as

25 Shala, who they transferred to the name of Bala, admitted in one fashion

Page 7456

1 or another that information came to them which clearly, if we are to

2 analyse the issue of their identification, was either influenced,

3 unreliable, or highly suggestive. Some claim to see him on television.

4 Some claim that they were told that Shala, through rumour, was Bala. And

5 the reason they knew that was because his father, a well-known singer in

6 the region, was somebody that they were all familiar with.

7 Now, in the context of what has occurred during these

8 proceedings, one of the things that is terribly clear is that there is

9 more than one Shala on the ground and in the field at Lapusnik, and

10 that's those with the pseudonym Shala. At Lapusnik we have heard of two.

11 One of them came to testify; he was a tall man. He had no moustache. He

12 worked at the compound where the Prosecution has put this prison camp.

13 And he was identified by, among others, as being a guard, at least

14 initially, L-64.

15 For a moment I wish to give you an image because thus far in the

16 discussions that have been had, everybody has suggested that we know what

17 reasonable doubt is, that we all are familiar with the concept and the

18 standards that are to be applied. And of course you being judges, versed

19 in the law, left with the duty of not only here finding law but also

20 facts, I for a moment will ask you as a jury to consider this, because

21 for the moment that's what you are: You are a jury, a fact-finding jury.

22 And what I would suggest to you with regard to the issue of reasonable

23 doubt and how to define reasonable doubt is that reasonable doubt, to

24 have something proved to you beyond a reasonable doubt requires the kind

25 of certainty and confidence that you would have in conducting the most

Page 7457












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Page 7458

1 important of your own affairs. That your reliance on the representation

2 made, that your reliance on the evidence given, that your reliance on the

3 word spoken is such that you would be confident to place your safety,

4 your life, your welfare or of those who are close to you in the hands of

5 that information.

6 Because you well know that at times I'm going to be talking about

7 the medical aspects of my client's situation, may I suggest to you that

8 when viewing the notion of reasonable doubt you consider that you are

9 walking into a surgery. The surgeons are the witnesses who have

10 testified. The lead surgeon for the Prosecution, for the moment, is

11 L-64. L-64 will take the appropriate tool, and in so doing he will begin

12 surgery on you. Are you confident? Are you comfortable? Would you rely

13 on that man operating on you? I think not. I think not.

14 Before you go under, you have a discussion with him. You say,

15 Tell me a bit about yourself. He explains to you who he is. Well, at

16 the moment I'm a recovered heroin addict, but I have that under control.

17 As a matter of fact, it really never was a problem. I've engaged in a

18 series of criminal behaviours, but they don't really affect what's about

19 to happen to you. And when it comes to issues that are important, when

20 it comes to matters that are critical for your consideration, I lie or

21 deviate from the truth or hide the truth or place others in harm's way

22 for reasons that I am not able to articulate.

23 You speak with him a bit more. You say, Are you sure you're up

24 to this job? Because that's what the Prosecution is asking, I think.

25 You will recall in their words he is the only member of the KLA who was

Page 7459

1 willing, and apparently that willingness has no conditions attached to

2 it, to come and tell you about the truth. That's what they're saying to

3 you. What truth? Well, the truth that they believe - and by "they" I

4 mean the Prosecution believes - is necessary for their theory.

5 And I digress for a very, very brief moment. There's a notion

6 and it's one that I know you're all familiar with. It's the one that's

7 in the Statute and the one that's in all jurisdictions, domestic and

8 international, and that's the presumption of innocence. And in those

9 jurisdictions where there are juries and there is a discussion with the

10 jury beforehand to determine whether they're qualified, one of the

11 questions that's asked is: As you -- at the beginning -- As you sit here

12 right now, prospective a near [phoen] person, what do you think? Is the

13 accused guilty or innocent? And oftentimes the answer that is heard

14 which they believe is the correct answer is: They're innocent until

15 proven guilty, which makes sense. But when there's an inquiry about what

16 that means, innocent until proven guilty, and there's an opportunity to

17 discuss with people, what does that mean to you? How do you feel about

18 that? What do you think about that? The answer is always inevitably the

19 same: they're innocent right now and when the Prosecution puts on

20 evidence, then they're guilty. Now. Not right now this very minute, but

21 now. After these submissions are over is when the wall -- and by that I

22 mean the wall that is required for the presumption of innocence has to be

23 constructed. That's when the attitude that you - because I'm talking to

24 you for the moment as a jury - this is the time when you construct that

25 presumption of innocence. This is the time when you say, have they

Page 7460

1 proven to my satisfaction this case? Can I rely in those matters that

2 are of the most important to me? Because in fact, the decisions you make

3 are the most important to these men, and certainly to Mr. Bala.

4 Now, I'm not asking for that analysis to have any emotion, none.

5 I'm asking for that analysis to be, in fact, objective. During the

6 cross-examination -- well, actually during the examination of L-64 and

7 the cross-examination of L-64, he revealed that he had an off-the-record

8 discussion with Mr. Lehtinen concerning his statement to him. Now, the

9 reason that he had this off-the-record discussion was, as he put it, his

10 security concerns. And Mr. Lehtinen assured him that he had nothing to

11 worry about in that regard and that he could be confident that if he

12 wanted to change any of his answers, that the following would be

13 considered. And this is at page 4783:

14 "I hope that we can continue and I hope there's something earlier

15 -- earlier in the interview that," and I use L-64 as opposed to a

16 specific name, "has answered in a different way because of this concern

17 that he had that this can now be corrected and will not be considered as

18 him changing his statement."

19 Because of his security concerns, he can say something different

20 and we, the Prosecution, will not consider this to be a change of his

21 statement. Well and good. So be it. I don't believe, quite frankly, in

22 the search for the truth. I don't believe that if what we are engaged in

23 here is an equal and, shall we say, dispassionate investigation that such

24 a position is particularly advisable, however. One would think that he

25 had said something in his statement previously that directly related to,

Page 7461

1 perhaps, where he lived, who he was associated with, who he had dealt

2 with, something along those lines. Did not. The only thing that changed

3 in the statement that this man made in his interviews in May when Shala

4 was a tall guard with a limp was the identity of the guard. Nothing else

5 changed.

6 "Q. So with regard to your ability to change your statement to

7 either include or -- information or exclude information that you

8 previously had dealt with in your interviews in May and the earlier part

9 of your interview in June, certainly by this time the conversation came

10 about there was nothing further that you were going to change, was there?

11 "A. There was nothing to change either in May or in June. The

12 fact -- the only difference is in May I didn't want to talk about Shala."

13 Well, what does that have to do with security? What happened in

14 that off-the-record discussion? What did L-64 learn or surmise then that

15 he decided to point the finger from where it had been for some period of

16 time to Haradin Bala?

17 By that time it was clear that the investigation was focussed on

18 Haradin Bala. If there was any question about whether or not there was a

19 focus an Haradin Bala, all you have to do is remember the words of Mr.

20 Kereakes. Mr. Kereakes, who was the first individual to engage in the

21 investigation, an investigation inherited by Mr. Lehtinen, who in his

22 statement indicated that he had shown a photograph to L-96 -- not L-64,

23 L-96. He had shown a photograph to L-96 -- I should say photo spread,

24 and that he had picked out Haradin Bala as Shala. But that never

25 happened. And Mr. Kereakes admitted that never happened. He never

Page 7462

1 showed any picture, any photo spread. But the initial architect of the

2 investigation was willing to state without any compunction whatsoever

3 that he didn't engage in activity. That he never engaged in. That he

4 had achieved a result that was never achieved.

5 Perhaps Mr. Kereakes should be the anaesthesiologist. In the

6 context of identification, it has been suggested to you that one should

7 look at independent corroborative facts as a basis for assistance. Shall

8 we contrast the testimony then of L-64, a gentleman who claimed to have

9 visited the prison on a number of occasions, a gentleman who claimed to

10 initially identify the guards as Zenel and Tamuli and changed them, a

11 gentleman who claims that he went to the prison with Dr. Zeqir Gashi.

12 And I'm sure you recall that testimony because he was quite clear about

13 the fact that not only did he visit the prison but he did so in the

14 presence of Dr. Gashi. And Dr. Gashi was there to be of some assistance

15 to an Albanian individual who had been beaten, and Dr. Gashi took the

16 position that he couldn't help and could render no medical assistance.

17 Well, now, if such a thing did occur, then this certainly would

18 be corroborative of a number of things. It certainly would assist L-64's

19 - as it's been suggested - independent ability to tell the truth as long

20 as it didn't relate to him, which I find and I trust the Chamber finds to

21 be a curious way of applying a standard of truth, that I will tell the

22 truth about everybody else but not of myself. That violates almost all

23 rules that we all have grown up with, the simplest one being: To thyself

24 first be true, which means of thyself speak the truth.

25 But with regard to this particular issue, you will remember that

Page 7463

1 Dr. Gashi, when asked the question concerning the prison, specifically

2 said he never went to the prison, never been in the prison. An argument

3 has been put forth here that essentially all witnesses for the

4 Prosecution, that's -- with regard to Dr. Gashi never going to the

5 prison, that's at 5661. With regard to the question in

6 examination-in-chief by Prosecution: "Did you ever visit a prison in

7 Lapusnik?" That's at 5631. His answer is: "No, never."

8 With regard to the issue of those witnesses put forth by the

9 Prosecution, the underlying argument essentially is this: As their

10 testimony relates to our theory of the Prosecution, they are telling the

11 truth. They are truth-tellers. With regard to discrepancies in their

12 testimony, they are either excusable for a variety of reasons, or they're

13 not consequential. Well, the issue about whether or not Dr. Gashi

14 attended the prison with L-64 is something which is relatively central to

15 a number of questions concerning what happened, what is reliable, and

16 who, if either, you choose to believe. Because either L-64 is telling

17 the truth and Dr. Gashi is lying or Dr. Gashi is telling the truth and

18 L-64 is lying. It's one or the other.

19 This isn't a question of mistake. This isn't a question of

20 confusion. And if one of them is lying about something which has not

21 only been put forward as relatively important but also pretty dramatic, a

22 doctor going to place and saying, I can't render any help, then I suggest

23 to you: If they're willing to lie about something that important - and I

24 echo some of the comments that have been made not only in the submissions

25 recently but in the submissions previously - that if they are lying their

Page 7464

1 testimony should be discounted.

2 I have noticed that an argument that's been put forth and a

3 suggestion to you once again with regard to identification is that those

4 witnesses who failed, who did not identify anyone in the photo spread,

5 who did not say in the photo spread that they saw Shala, were either

6 infirm, weak, or had suffered trauma to the extent that they were

7 incapable of giving such information or being able to establish and

8 identify. Well, if one is to take a look behind what is being asked,

9 you're being asked to draw an inference. And if you're being asked to

10 draw an inference, then you're being asked something else. Because

11 inferences arise in the area of circumstantial evidence. Inferences

12 arise with regard to, not cobbling, but putting information together from

13 which you can draw a conclusion. And the importance of the analysis with

14 regard to circumstantial evidence, which is recognised in this

15 jurisdiction and recognised in many jurisdictions, is that if there are

16 two plausible, reasonable explanations, one which leads to guilt and the

17 other which leads to innocence, you must follow that which leads to

18 innocence. That's the path you take. There's a sensible reason for

19 that, because obviously you're balancing. Obviously you've got two

20 competing ideas. And if they both have some form of reasonable

21 credibility to you, well then you haven't met the standard of reasonable

22 doubt. It's a lot -- it's a logical way of doing things and something

23 that I trust, because you're Judges, you've thought of in terms of the

24 way you put the law together because I watch -- it's here. One of the

25 things you're doing is you're creating a law and you're thinking through

Page 7465

1 the way that evidence should be analysed. What happens when you have a

2 variety of different factors put together, what do you do with it? And

3 I'm sure you don't engage in just a rote kind of analysis here, but you

4 carefully choose and weigh. And this situation where you have a

5 suggestion, the suggestion being that these people were too infirm, and

6 it is for that reason that you don't have to give them any credibility

7 with regard to the negative identifications. But you give them definite,

8 positive credibility with regard to an in-dock identification because

9 they were traumatised as opposed to another plausible explanation: It

10 wasn't him. He wasn't there. He's not a dark man. His physical

11 condition is such - and I will speak more about his physical condition -

12 that the kinds of activities they're ascribing to him are not activities

13 that reasonably he could engage in, reasonably he could engage in.

14 Assuming for purposes that you do not accept what you have been told and

15 what we believe to be, because it is, the truth of his situation.

16 Haradin Bala is a sick man, having lived like many of his people,

17 under the boot of the Serbs heard the shots of war, he heard gunshots.

18 And he told you that he went to go fight. He told you that others told

19 him that he should not. And if there's one thing which is consistent in

20 everything that you've heard about Haradin Bala, apart from the fact that

21 he's stubborn, it is that he is sick. You have independent medical

22 records establishing that this man has, for over a decade now, suffered

23 from at least three and perhaps as many as five, depending on how you

24 read the records that have been placed before you under seal, heart

25 attacks. Not a smart thing for a sick man to go fight in a war. He's a

Page 7466

1 young man, too, he's 47 years old. He's a young man now, but he did

2 that. He did what any person in his situation would do: He took his

3 family momentarily to the first point of safety, Nekovce, he then went to

4 go fight. Now to get to Nekovce from where he lives, and examination of

5 the maps will show you, is a checkpoint, Komorane. You can't be walking

6 with a gun through that area. So after taking his family to safety, he

7 went and got his gun and went to Lapusnik. He arrived in Lapusnik some

8 time probably after the fighting, right after the fighting. And he

9 stayed there for a relatively short period of time. So there is no

10 doubt, there's no mistake, we are absolutely in agreement that Haradin

11 Bala was in Lapusnik; that is not a question. The question is when and

12 for how long.

13 Now, the answer to this question, as the evidence has shown, is

14 that he was in Lapusnik until the point in time that Commander Kumanova

15 and he left, which is the end of May. He was seen in Lapusnik during

16 that period of time by Elmi Sopi. He was seen in Lapusnik weakened

17 during that period of time by Dr. Zeqir Gashi.

18 Now, it is important to remember that up until the time of these

19 proceedings Zeqir Gashi was not an anticipated or contemplated witness by

20 the Prosecution. By motion in March, they sought to have him be allowed

21 to testify because he would, as they put it, contest the alibi presented

22 by Mr. Bala. Now, you have before you, it's in evidence, the statement

23 of Mr. Tucker. The statement of Mr. Tucker is DB7 and it involves his

24 interview with Dr. Gashi in which Dr. Gashi, according to Mr. Tucker's

25 interview, notes was operating a clinic in Lapusnik May/June/July 1998

Page 7467

1 and it started in May or June.

2 Now, Mr. Tucker says that nobody was paying too terribly much

3 attention at that time, they weren't focussing on a date when Dr. Gashi

4 started his medical efforts. And for the moment assuming that is the

5 case and assuming the reason why Dr. Gashi was being called by the

6 Prosecution to testify, one would have thought, considering the

7 discussions that had been had in these proceedings for many months

8 concerning the invisibility of asking leading questions that the

9 following would not have occurred because if indeed this information was

10 both as accurate and as solid as the Prosecution now contends, they would

11 have wanted it to have arisen as pure as the driven snow, not driven to

12 it.

13 Question, 5621: "Did you know anything about Haradin Bala's

14 father?"

15 That's a non-leading question.

16 "Everyone in Drenica knew his father. He was a well-known singer

17 of folk songs.

18 "Q. During June and July of 1998, did you see Haradin Bala in

19 Lapusnik?"

20 "Mr. Guy-Smith: Objection, leading. He can ask him what times

21 he saw him, but he's leading him to an answer at this time.

22 "Mr. Whiting: It's hard, Your Honour, to" -- he didn't get to

23 complete the answer. And I guess if I would ask you to draw an

24 inference, one that leads to guilt, the other that leads to innocence, he

25 would obviously prefer the one of innocence, that it's hard to ask a

Page 7468

1 question and I suggest the proper end to that would be: It's hard to get

2 the answer that I want. I leave that as an aside.

3 "Judge Parker: Just carry on. Whatever harm there is has been

4 done, so --"

5 Now, once the bell has been rung, as we all know, it's not

6 unrung. So now the question is asked again:

7 "Did you see Haradin Bala in Lapusnik?"

8 "Yes."

9 "Q. When did you see him in Lapusnik?

10 "A. He came to our clinic once for a check-up.

11 "Q. But when was it in terms of the time period?

12 "A. When we stayed in Lapusnik.

13 "Q. Can you be more clear?"

14 And the answer comes: "June and July of 1998."

15 Well, I'll be. Gosh, darn. What do you know?

16 There's an example of something that all lawyers fall into, and

17 many Judges criticise us for doing so, which is testify, and we don't get

18 to do that. That's not what this is about. It's not the unblemished

19 response coming from a witness allowing you to make a determination with

20 regard a relatively critical issue for both sides.

21 Now, I'm not suggesting to you here, to be very clear, that Dr.

22 Gashi did anything wrong. I don't think he did. I suggest to you that

23 by asking the question in the fashion that he did, the value of the

24 assertion that Dr. Gashi saw Haradin Bala in June and July of 1998 is

25 worthless, especially in light of the fact that we do know he was

Page 7469

1 operating a clinic and he was engaged in offering medical assistance in

2 Lapusnik during May. And we know that Haradin Bala pretty much visited

3 wherever he could in order to get whatever medical assistance he might,

4 not only during the summer months but before the summer months when he

5 would visit and obtain medication from Ferat Sopi, the man whose home in

6 which Dr. Gashi's medical clinic was operating. Ferat Sopi, a druggist,

7 had been giving Mr. Bala medicine for his condition, his cardiac

8 condition, for years before 1998.

9 During the months of June and July, he was seen by and treated

10 for, to the extent that he could be, his medical condition by Dr. Fetim

11 Selimi, uncontradicted, uncontroverted testimony, unchallenged. Dr.

12 Selimi told you that not on one occasion but on a number of occasions he

13 saw Haradin Bala. He saw his condition. He heard his complaints. He

14 attempted to render medical assistance to him. His condition was that of

15 one who had cardiac difficulties. He was using nitroglycerine, a

16 medicine used for individuals who have cardiac difficulties. His lips on

17 at least one occasion were blue, meaning that he wasn't getting a

18 sufficient amount of oxygenated blood. He was brought there by others

19 because he was not capable of making on his own. It was hot.

20 Dr. Selimi told Haradin Bala, Light duties; go home. The most

21 important thing in once sense that Dr. Selimi told us was that he

22 wouldn't have thought much about Haradin Bala, but he saw him on

23 television in connection with these proceedings. He goes, what's that

24 guy doing there? I know that guy. I treated him. I remember him. I

25 didn't have a lot of people from the KLA coming to me with cardiac

Page 7470

1 problems. Sure, they came to me to be treated for their wounds but not

2 for a cardiac problem.

3 Is this a convenient time?

4 JUDGE PARKER: We will resume at 5 minutes past 4.00, Mr.

5 Guy-Smith.

6 --- Recess taken at 3.45 p.m.

7 --- On resuming at 4.09 p.m.

8 JUDGE PARKER: Mr. Guy-Smith.

9 MR. GUY-SMITH: Dr. Selimi saw Haradin Bala during the months of

10 June and July. He saw him in a place which makes it nigh on possible for

11 him, that is Haradin Bala, to have been at Lapusnik. No man, including

12 Haradin Bala, can be in two places as once. During the months of June

13 and July, you have heard evidence from innumerable sources. It was hot.

14 The Prosecution opened its case discussing how rugged the mountains were

15 around Lapusnik area, and Dr. Selimi himself, who commented that at that

16 time - he wasn't commenting about his state of physical health when he

17 testified - but at that time he was in good health. And for him during

18 the year in the summer months of 1998, it was difficult to negotiate

19 those areas, which is something that I will return to in a few moments.

20 It has been suggested that Avdulla Puka, who told you that

21 Haradin Bala stayed with him at his home in Javor, was mistaken or

22 confused because he couldn't remember what he had for dinner last week.

23 Well, Mr. Puka related his memory of Mr. Bala's presence at his home to

24 something that he had been doing for years, because every year he did the

25 same thing: He harvested the grass for his animals. That occurs at a

Page 7471

1 certain time. And for those of us who have spent a moment or two on a

2 farm, you can't cut the grass too early or too late if it does going to

3 be fodder for an animal. Mr. Puka associated Mr. Bala's presence at his

4 home with something with something that he's been doing for years. It's

5 uncontroverted, it's uncontradicted. And there was no motivation that

6 was suggested why Mr. Puka would be lying, mistaken, or otherwise

7 inaccurate.

8 Skender Bylykbashi, once again in speaking about his seeing of

9 Mr. Bala related it to specific events or items of importance, because

10 you will recall he told us that when Haradin Bala came he came with food,

11 he came with flour. And it was the flour that Mr. Bylykbashi was

12 interested in because flour was a substance that he could use to feed

13 those people about him. And he was curious and interested in the

14 availability of the flour. It was not contradicted, it was not refuted,

15 nor were any reasons given or suggested why he should not be believed.

16 Ali Thaqi who has known Haradin Bala all his life told us about

17 his medical condition, a medical condition that we have independent

18 information about. He gave us information about other aspects of his

19 time with Haradin Bala. Not refuted, not contradicted.

20 But you're told that his alibi is a lie. L-64 is a truth-teller;

21 these people are liars. Ferat Sopi, an older man, a man certainly of his

22 own mind as I think we all saw, told us that Dr. Gashi opened his clinic

23 at his home, that he was not sure of the date, that he remembers working

24 with Dr. Gashi, if I'm not mistake, in the latter part of May. Now,

25 there was much conversation concerning what he said and didn't say in an

Page 7472

1 unrecorded conversation with Prosecution over whether or not what he

2 read -- whatever he did read in Koha Ditore with regard to Dr. Gashi's

3 testimony was accurate, as contended by the Prosecution, meaning he said

4 he read all of the testimony and it was accurate. That is the inference

5 you are to draw because there is never any information which is clear as

6 to whether or not the man even read the entirety of the testimony. But

7 be that as it may, he said, that is Ferat Sopi, that he didn't tell them

8 it was entirely accurate. He said there were some problems with it.

9 Now, the article itself, which is in evidence and which was discussed

10 during his examination, also has in it the date of May and also has in it

11 the fact that the date of May related to when Dr. Zeqir Gashi was running

12 the clinic.

13 Now, I pause and go somewhere else for a moment.

14 Curious, strange, I suggest, especially in light of these

15 proceedings, especially in light of the difficulties that the Prosecution

16 ostensibly was having with certain witnesses that in dealing with the

17 interview of somebody like Dr. -- I'm sorry, Ferat Sopi, who was once

18 again critical on an issue of time and place concerning the whereabouts

19 of Mr. Bala, and specifically concerning his assertion that he was not in

20 Lapusnik; curious that such an interview was not tape recorded or video

21 recorded, so he, like others, could be declared hostile if such a

22 statement was made.

23 Now, if we had been given this from the outset, from the very

24 beginning of the case, before the kinds of things that had happened here,

25 I would not make such a suggestion. But considering the manner in which

Page 7473

1 such a powerful tool, which they have suggested it is, and such an

2 absolute tool which they have suggested it is, because you could see the

3 mannerisms, you could hear the words, you as the triers of fact would

4 have before you each and every breath of that interview so you could

5 judge what was said, is not before you.

6 In order for you to find that Haradin Bala on July 25th, fall of

7 Lapusnik, walked up the mountain in the heat of the day an area rugged,

8 defined by a number of individuals, you necessarily have to discount the

9 testimony of Dr. Selimi. You have to discount the testimony even of Dr.

10 Gashi with regard to Haradin Bala's physical condition because one of the

11 things that you were told specifically by Dr. Selimi was -- during the

12 period of time that he saw Haradin Bala - and now for the moment I'm

13 going to make a theoretical jump and he saw Haradin Bala and that Haradin

14 Bala somehow got back to Lapusnik, an area which would be virtually

15 impossible to get to, and he went back up the mountain - all of which, I

16 contend, and I don't believe the evidence has shown at all - that he was

17 having difficulty breathing; that he was having difficulty moving step by

18 step in the heat of the summer, something that you have heard was a

19 constant in his life.

20 Now, I ask you here to draw an inference if you choose to reject

21 what we contend we have proven, that he was not at Lapusnik. There is no

22 doubt, it has been proved beyond a shadow of a doubt that Haradin Bala

23 suffered a physical condition of some gravity. You have heard evidence

24 that his physical condition during this time - I won't say was fragile -

25 but certainly was not good, that he was incapable of doing that which a

Page 7474

1 normal man his age or older - and those are words that I use - would do.

2 Now, remember, because now you have been told not once but a

3 number of times by the Prosecution that Haradin Bala is the man who beat

4 people. Not once or twice, a little wrap on the wrist, but we're talking

5 about some good floggings, 59 times at one point in time, one gentleman

6 testified to. Now, I ask you: If in fact the individual who did that

7 was Haradin Bala, how was he physically capable of doing it? How? If

8 his situation was such that he was having difficulty breathing while

9 perambulating, the kind of effort it would take to wield a stick for that

10 period of time is not something that, I suggest to you, he could have

11 done.

12 Now, in our opening we said we cannot say he was incapable of it

13 because we can't. We do not evidence that says he was incapable of it,

14 but I do suggest to you here we have clear circumstantial evidence, clear

15 evidence from which you can reasonably, logically, and objectively draw

16 an inference. And the inference to be drawn is that based upon his

17 recognised physical condition - testified to by many, recorded up to this

18 very day - he was not a man he was capable of engaging in those

19 activities.

20 But I take it for a moment even a step to the side, not further

21 but to the side. Because you have in your possession statements made by,

22 I believe, two gentlemen, L-04 and L-06. Those statements are statements

23 which, as you know, per agreement, received after both of these gentlemen

24 testified, statements which were given to Serbian authorities concerning

25 their experiences.

Page 7475

1 L-04's statement was given on the 1st of October, 1998. It's

2 P203, I believe. It's either 203 or 204, but I look to Mr. Younis, as we

3 all do, to make sure that I'm not misrepresenting the record. 203.

4 Now, L-04 has testified that going up the mountain there that

5 Shala was one of the people who went up there. Now, we have been given a

6 series of excuses for why information would be either incorrect or, in

7 this instance, people would not wish to admit they had anything to do

8 with the Serbs because it would be impolitic. And their denial of any

9 statements made to the Serbs is understandable, apart from the fact that

10 these statements themselves are in fact laden. I refer for the Court's

11 review the following paragraph, paragraph 10, in which L-04 relates the

12 following:

13 "After a month spent in the prison, the source states he was

14 taken out of the room together with," some other people. "They then

15 blindfolded them and drove them in a passenger vehicle to Kishna Reka

16 where there were other people who had been kidnapped by the KLA. The

17 kidnapped individuals were surrounded by eight KLA members in camouflage

18 uniform and masks on their heads."

19 Now, we know, everybody has agreed, that a number of individuals,

20 many individuals wore masks. They wore masks to not be identified. And

21 that is the first information given concerning L-04's release.

22 L-06, which I believe is 204, with regard to his release states:

23 "After a month in prison the source said they were taken out to the

24 doorway of the room where they were being kept, that sacks were placed

25 over their heads and they were then taken to Kishna Reka village,

Page 7476












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

13 English transcripts.













Page 7477

1 Gllogovc, where the sacks were removed." Names no one with regard to

2 identity. Says he saw his brother and others for the first time. But

3 then, importantly, because a suggestion has been made that part of the

4 reason that these individuals were reluctant to discuss any of this was

5 because they didn't want to have any information go back where it could

6 be determined or assume that they had anything to do with the Serbs, so

7 that they would not ever identify anybody who they might have been able

8 to identify in the KLA - assuming they could - this gentleman says:

9 "At the end of the interview the source stated that amongst the

10 KLA members," and he says who kidnapped him and some others, "he

11 recognised," and then he gives a series of names.

12 The name "Shala" does not appear. The name "Haradin Bala" does

13 not appear.

14 We do know that in a certain sense this is a small community, and

15 we have heard from some, including L-96, that whispers brought names,

16 that people talked, and that names were then attributed to other names.

17 And upon those kinds of correlations, a guess being made, as is

18 suggested, highly speculative, not particularly reliable, there is no

19 foundation. You're asked to assume on a whisper that the information is

20 accurate, that he became convinced that Shala was Haradin Bala. But the

21 evidence, if examined closely and objectively, establishes that it is

22 speculative in nature and does not bear sufficient indicia of reliability

23 to prove beyond reasonable doubt that Mr. Bala was involved in these

24 activities.

25 Memory's a curious thing, and a person's desire to resolve a

Page 7478

1 trauma, make sure that that which happened to them historically is

2 satisfied, I think we all know, we have seen on more than one occasion,

3 can push towards conclusions that are not substantiated by the actual

4 evidence produced.

5 It is easy to say in the most emotional of senses that we have

6 proved our case beyond all possible doubt, which has been said to you by

7 the Prosecution repeatedly in their final submission. And what should

8 give you pause is that they do not take into account the independent,

9 external, objective information that could cast doubt and refute it.

10 They do not in their advocacy give you the complete picture and say,

11 Looking at the totality of the circumstances which we, by virtue of our

12 position as Prosecutors must do responsibly by taking into account what

13 we acknowledge are areas that you should be concerned about if indeed

14 this is a search for the truth, and having taking all of that into

15 account, Your Honours, we say to you that we have satisfied our burden --

16 that they did not do. They shy away from those difficulties.

17 And the reason that they shy away from those difficulties is

18 because those very points establish that which they choose not to

19 confront: Their failure to prove the case beyond reasonable doubt.

20 Their failure for you to be comfortable having the surgery I suggested to

21 you at the beginning. Because once you begin to question the doctors -

22 and now I suggest you take each and every witness and place them in the

23 operating theatre, assign them whatever task you will: attending nurse,

24 assistant anaesthesiologist, assistant surgeon, and you put them in that

25 theatre - and you have the opportunity to ask them the questions that you

Page 7479

1 would ask before going under the knife, you would not be satisfied. You

2 would home for a miracle. You would look for another form of treatment.

3 Haradin Bala's a simple man. He comes to you from a somewhat

4 different tradition than others before you might have. As I said

5 earlier, he too, as all seem to have in Kosovo, suffered under the boot

6 of Serbian oppression. He told you that -- when he spoke with you that a

7 mistake had been made. He told you that when he heard these things he

8 felt sad.

9 Now, I believe that there is at this time insufficient evidence

10 and a failure by the Prosecution and that is verdict that you should

11 render in this case objectively is one of not guilty.

12 I had not intended on commenting at all with regard to issues

13 concerning sentencing. I find it actually to be, as an advocate,

14 inappropriate and awkward to do so. I have been concerned about this

15 because also as an advocate I wish never to waive any rights that attach

16 to my client. So I have this to say: If after a careful consideration

17 of all the evidence, if after an analysis when engaging in those areas

18 where inferences are to be drawn, which is perhaps where you may spend a

19 fair amount of time in your deliberations, you make the determination

20 that he was involved in these activities, any or all, you obviously will

21 then have another duty to perform. He has told you about his family, he

22 has told you who he is. And I started off by saying he is a simple man,

23 who probably in a very real sense - you've seen some of the reports,

24 you've read some of the medical reports - his time is more limited than

25 most. How much longer, I don't know. That he has repeated medical

Page 7480

1 difficulties does seem to be true. What they are have not yet been

2 diagnosed. They seem to have taken care of certain aspects of his heart,

3 thank goodness; there are other things going on and the records you have

4 before you establish that.

5 His contributions to the world of the future are simple ones,

6 really. He looks forward to, as he told you, a society where all of the

7 boys and girls play together. He won't be a politician. He won't

8 negotiate. He won't do many of the things that other fine human beings

9 will do and one has done. But he will live his life out, whatever that

10 is remaining, in, I believe, a quiet and dignified fashion. He would

11 never appear before any Tribunal of any sort. He would not be here today

12 had he not heard the gunshots, had he not decided to go fight for his

13 people, had he listened to the pleas of his family, which is, Haradin,

14 you're too sick, you're too old, you don't belong doing these kinds of

15 things. But he did not.

16 So whatever choices you would make in that regard, if you reach

17 that point - which I suggest to you you won't and you shouldn't after

18 analysis of all the information - is a very insubstantial period, if any

19 at all.

20 Thank you for your consideration. I trust my remarks did not

21 offend, and I hope that they have given you the appropriate basis upon

22 which to consider the task which lays before you of determining this

23 gentleman's fate.

24 JUDGE PARKER: Thank you very much, Mr. Guy-Smith.

25 Mr. Topolski.

Page 7481

1 MR. TOPOLSKI: May it please Your Honours. We begin this closing

2 speech, the last you will hear, by recalling the opening lines of

3 another. This was delivered by Robert Jackson, who was at the time an

4 associate justice of the United States Supreme Court. But as he spoke

5 these words, he was lead counsel for the Prosecution, standing now some

6 60 years ago before the International Military Tribunal in Nuremberg when

7 he said this:

8 "An advocate can be confronted with few more formidable tasks

9 than to select his closing arguments, where there is a great disparity

10 between his appropriate time and his available material."

11 Well, it's been, by my calculation, 87 days that you have been

12 hearing and receiving, in oral and documentary form, a huge amount of

13 detailed evidence. So what shall we do? Well, we will attempt,

14 precocious as it may be, to do precisely that which Justice Jackson

15 attempted to do 60 years ago, to lift this case out of the morass of

16 detail and put before you, sometimes only in summary form, occasionally

17 in a little more substance, the bold outlines of the case for and on

18 behalf of Isak Musliu.

19 What's our purpose? Well, our purpose is three-fold: first of

20 all, to highlight and comment upon what we consider to be the main points

21 for and against him, as set out in the final briefs of both sides;

22 secondly, to demonstrate how and why this jury of jurists can and should

23 find that the case against him has failed; thirdly, to demonstrate that

24 that failure has come about because in respect of each and every count on

25 this indictment, there is either no evidence or, such as there is, either

Page 7482

1 taken alone or with other evidence, is either unreliable or suffers from

2 inherent weakness or is contradicted by other evidence so as to render

3 this entire case against Isak Musliu fatally flawed.

4 Bold claims. Justifiable ones, we submit. A mountain to climb?

5 We shall see.

6 Can we make, please, in the hope that they make assist, some

7 general introductory remarks. Can we begin where an English judge could

8 begin any summing up to an English jury, where the Prosecution begin at

9 paragraph 293 on their section on law and application mirrored in

10 paragraph 26 of the joint Defence briefs: "The burden and standard of

11 proof are familiar enough," encapsulated, of course, as they are in

12 Article 21's presumption of innocence.

13 You must be sure of two things: First of all, that the crimes

14 charged have been committed; and secondly, that the accused whose case

15 you are considering, and I underline those words, is beyond reasonable

16 doubt responsible for those crimes.

17 May I pass to a word on functions. Now that we've reached a

18 closing stage at this case, the elision in this jurisdiction between your

19 functions of judges of law and fact as well as your powers and your

20 duties to regulate and supervise this trial process do, in a very real

21 sense, turn Your Honours into a jury of jurists, which of course is not

22 yet familiar to us in the United Kingdom, but it will be soon. It's

23 familiar to you all from your own jurisdictions, of course.

24 But you're not, as it's been observed more than once in the last

25 87 days, a raw jury. You're not amateur debutants in the process,

Page 7483

1 professional judges appointed as such. And in a very real sense your

2 joint and several tasks in reaching a judgement in this case may be

3 harder than if you were a lay jury of 12, directed in the law by a

4 professional judge. How so harder? Harder, perhaps, to allay the fear

5 and suspicion that you may be less than willing to apply the standard and

6 burden of proof. It is or may be harder to demonstrate to a lay

7 defendant or to the lay public looking on how it is, for example, that

8 you are able to receive and hear evidence and give it little or no weight

9 or even reject it and then move on. The lay jury receives only that

10 which the professional judge permits them to hear, excluding from them,

11 where possible, the irrelevant, the immaterial, and the prejudicial.

12 This jury hears it all, or most of it. And that is why we say to an

13 onlooker, to a defendant, the task for you may seem more difficult. No

14 wonder then the public or a defendant may have doubts and require

15 assurance and reassurance that fairness and open-mindedness prevails to

16 the end of the process.

17 In this very case at the very beginning of it, our client,

18 through us, as did others in this dock, voice concerns and fears, which

19 for our client and indeed the others was overcome by them, to place their

20 faith and their futures in the hands of this Chamber and this process as

21 being a fair one. But, Your Honours, fairness is not weakness. If this

22 Chamber comes to the decisions we argue for in the case of Isak Musliu,

23 then it will have, we suggest, resoundingly demonstrated the true

24 meaning, the true power of the principle that guilt can only be

25 established if you and each of you is satisfied so that you are sure of

Page 7484

1 it. It may well be that in this case of Isak Musliu where rarely, as we

2 understand it in the jurisprudential history of this Tribunal, a

3 defendant gives or calls no live evidence that this principle receives

4 its sternest test.

5 A word on your approach, if we may. Evaluating or assessing the

6 evidence is dealt with, of course, in both side's briefs. May we suggest

7 a shorthand approach. Decide first on the evidence you can be sure of in

8 relation to the issue you are considering and your inferences from and

9 only from that evidence. Assessing witnesses, the questions that of

10 course will be posed. Have they come to assist, to speak the truth?

11 Have they come driven by other less noble motives? Is their testimony

12 wholly unaffected by others? In our opening we also invited you to

13 consider the possibility, if at all, of the extent to which, if at all,

14 old scores, old enmities were or may be being settled.

15 Can we turn to another area, again by way of introduction, again

16 we hope only to assist. When it comes to considering the evidence of

17 that trio who you found to be hostile, Buja, Behluli, Karpuzi, and where

18 the issue of prior statements being taken as substantive arises, we

19 crystallise our submission in two ways: If not believed on their oath

20 before you, they should not be believed at all.

21 On corroboration and corroborative evidence, we suggest and we

22 submit that the only fair and safe way to proceed is to search for

23 evidence in relation to key witnesses such as 64 and 96, which is wholly

24 independent of them.

25 Can we turn from there to a critically important category of

Page 7485

1 evidence in this trial, that of identification. In 28 paragraphs over 13

2 pages in their final brief, the Prosecution argue that the

3 identifications by witnesses in this case and the procedures adopted to

4 obtain them are reliable. Whether, whether, they were having any

5 unconscious second thoughts regarding procedural rectitude I'll leave to

6 this Chamber to decide.

7 But in doing so, may we point out that in paragraph 151 of their

8 brief, the photo spread identifications and procedures used in all the

9 identifications are submitted to be: "Very reliable." By paragraph 152,

10 they are described as: "Reliable." By paragraph 154 they become

11 "adequate." Reliability for the Prosecution seems to be predicated on

12 the following: First of all, that witnesses heard pseudonyms being

13 spoken; secondly, that witnesses heard the true identities of a defendant

14 via others. For example, L-04 was told that Qerqizi equals Musliu by

15 Milaim Kamberi. So they confidently submit based on that kind of

16 material that, and I quote them: "The victims' knowledge of pseudonyms

17 of the accused while at the camp is strong evidence of their presence

18 there."

19 Well, in the example we've just given that L-04's knowledge is

20 based upon a hearsay statement from an identified source who they could

21 have called but did not call cannot, we submit, provide strong evidence

22 of anything, least of all a positive identification.

23 The Prosecution in support of reliability also submit the victims

24 provide "largely accurate descriptions." Well, that will be, of course,

25 for you to decide. But they make a bold submission in paragraph 140 when

Page 7486

1 they say this in their brief: "Vojko Bakrac described a man fitting

2 Musliu's description as a well-built young man, shorter with the witness,

3 darker haired with a beard."

4 Well, let's go on for a moment in this one example and look at

5 what this witness went on to say about this man who was beating Genov,

6 who fits the description of Isak Musliu, paragraph 140 of their brief.

7 Turn back 14 paragraphs and you'll see them say in their brief, exactly

8 matching Musliu's description. In closing yesterday it becomes "closely

9 matching" the description of Musliu. But what did he go on to say,

10 Bakrac, at page 1.307?

11 "Q. Did this person ever say anything to you about his education

12 or background?"

13 "A." -- this is supposed to be Musliu -- "Afterwards he studied

14 at the university. He'd attended the PE school and he knew martial

15 arts."

16 Three points, Your Honours, we'll hear a little while later on in

17 this speech from L-64 about another man who knew karate in this camp.

18 I'll keep the Tribunal in suspense as to who that is.

19 Secondly, references to a university and PE school do not and

20 cannot refer to Isak Musliu. This is supposed to be the same Musliu who

21 you will recall, according to others, habitually wore a mask and is

22 apparently giving a personal biography to a potential identifying

23 witness. This is not, we suggest, a description fitting of Isak Musliu

24 so you can reliably sure of it, sufficient to find beyond reasonable

25 doubt that he is here to be identified as Isak Musliu and no other.

Page 7487

1 Prosecution submit that L-96 makes a positive identification of

2 Musliu in "extremely favourable conditions." He doesn't. He makes a

3 positive recognition of Musliu, a man he says he knew. Curious if true

4 that Musliu chooses to be unmasked in front of someone who knows him, but

5 that's by the bye.

6 They go on then to make a breathtaking submission as far as L-96

7 is concerned: "There is no reason for L-96 to be untruthful about having

8 seen Musliu at the prison."

9 Well, we shall see if there are no reasons.

10 Then, submits the Prosecution, the procedures, the photo spreads,

11 and so on are reliable, having been properly and fairly prepared and

12 deployed. May we make six short points on that submission. First of

13 all, may we respectfully ask that the Chamber reminds itself of the

14 cross-examination of Kereakes in order to begin to test that proposition;

15 secondly, may we respectfully remind the Tribunal that identification

16 evidence must be treated with caution, we are going to submit, extreme

17 caution, for we submit you can read extreme caution into the judgement in

18 Kunarac et al.: "Many difficulties inherent in the identification

19 process resulting from the vagaries of human perception and

20 recollection." As an English judge would say: "An honest witness may be

21 a mistaken one. More than one can be both convincing and mistaken. And

22 mistakes can also be made in recognition of someone known, even of a

23 close friend or relative." We do invite this Tribunal to proceed with

24 extreme caution when assessing this category of evidence. We commend

25 Professor Wagenaar's report to you, and in particular his rules. They

Page 7488

1 are, we submit, both modest and sensible.

2 And we remind, finally, sixthly, this Tribunal in general terms

3 regarding purported identifications of Isak Musliu that the position is

4 simply as follows: He was only identified by being recognised by L-26.

5 He's been identified by no one else. He was not identified by L-12. He

6 was picked out of a photo spread by L-64 -- hardly a surprise, a KLA man

7 who knew him. L-04 was confronted with a picture by Kereakes who used

8 photo board U1 -- I think that may be the one that went missing, I'm not

9 sure - to which L-04 said, Well, he looked familiar but I'm not sure.

10 Isak Musliu is in a unique position in this trial. There is no

11 identification of him by anyone, and all there is a purported recognition

12 by L-96. The Prosecution finally and perhaps somewhat unusually submit

13 in paragraph 157 of their brief that the dock identifications in this

14 case, and I quote them again: "Provide strong corroboration of the other

15 evidence showing the presence of the accused in the prison."

16 Two points: If that is intended to include Isak Musliu, there

17 was no in-court identification of him, I remind you; Hardly surprising,

18 you may think. Secondly, the Prosecution's submission has to be placed

19 alongside the jurisprudence of this Tribunal. I pick another example in

20 Tadic where the Tribunal explicitly stated they would place little or no

21 reliance on it, the "it" being the dock identification, and they would

22 assess the credibility of each witness independently of it.

23 And they go on in that same paragraph, 157, of their brief, again

24 to make another bold submission, bearing in mind one aspect of this case

25 that we have from time to time raised in cross-examination. They say

Page 7489

1 this: "The victims have a strong interest in ensuring that the correct

2 individuals and not simply those on trial are held responsible." No

3 argument with that. "Therefore, it is expected that some, if not all, of

4 the victims who testified, would have alerted the Tribunal in court if

5 the wrong persons were on trial."

6 Well, I just have two words to say in response to that: Agim

7 Murtezi. Not one witness whom we asked took any step whatsoever to tell

8 anyone in the world that the wrong man was here in this dock. The tragic

9 disaster of misidentification, therefore, has occurred in this very case,

10 in the case of the innocent Agim Murtezi. There can be no better way of

11 concluding our submissions on this vital topic than by stealing from the

12 poet Yeats: The ghost of Agim Murtezi bangs upon the door. I'll provide

13 the identity of the person Yeats referred to if required by anyone later.

14 From the practices and procedures adopted to the difficulties

15 we've sought to identify, the identification evidence, such as it is in

16 the case in general and in the case of Musliu in particular, is not very

17 reliable nor reliable nor even adequate. It doesn't exist.

18 So that concludes, again we hope of some assistance, by way of

19 introduction some of the key areas you will be concerned with in terms of

20 your approach to reaching a judgement in his case with one rather special

21 exception, and may I make it lastly in this section. It's not been said

22 by anyone yet, I don't think. There are three defendants on trial, three

23 separate trials, we submit, heard together for obvious reasons of

24 convenience and economy, but three cases nonetheless. Separate

25 defendants demand and require separate consideration and separate

Page 7490

1 verdicts. A finding for or against one does not, cannot, and will not

2 inevitably lead to a finding for or against another. So we can move on

3 to deal with the next aspect of the trial.

4 This was going to be quite a long section, but in the light of

5 the submissions made to you by Mr. Mansfield and the document which we

6 respectfully support having gone in, I wanted to deal at some length with

7 armed conflict and crimes against humanity. But happily, I don't have

8 to. Save, I want to say one thing on armed conflict. And may I just

9 remind the Trial Chamber, of course armed conflict relates to the

10 even-numbered counts, 2, 4, 6, 8, and 10.

11 The strength of the FRY forces relied upon by the Prosecution in

12 support of their arguments does not, we suggest, provide the support they

13 claim that it does. As I understand their submissions, they say that in

14 and of itself the deployment and numerical and logistical strength of the

15 FRY forces shows incontrovertibly, they submit, the nature and extent of

16 the threat posed, and hence, they submit, if I've understood them

17 properly, powerful evidence going to the intensity of the conflict.

18 We say in response to that that the size and deployment of the

19 FRY forces also indicates something else altogether, that there was a

20 different purpose than taking on and defeating such KLA forces as there

21 were at the time you are concerned with. The further, the greater, and

22 we suggest the dominant FRY forces in the spring and summer and autumn

23 and winter of 1998 was nothing more nor less than the ethnic cleansing of

24 Kosovo. That is or may be why such-used forces were engaged, to satisfy

25 the dual purpose of ethnic cleansing as its primary purpose and, at the

Page 7491

1 same time, putting down in the late spring and summer - their words, not

2 mine - "the terrorist KLA."

3 As far as crimes against humanity are concerned, the odd numbers,

4 1, 3, 5, 7, and 9, again may we respectfully suggest that a definition of

5 crimes against humanity may be helpful to remember, and it comes from

6 Tadic. And I quote: "Crimes against humanity are crimes which by their

7 magnitude and savagery or by their large number or by the fact a similar

8 pattern was applied," and here are the vital words we suggest,

9 "endangered the international community or shocked the conscience of

10 mankind."

11 You will bear in mind the numbers involved here of disappeared,

12 no greater on any estimate than 300. You will set that against the tens

13 of hundreds of thousands of Kosovar Albanians who were displaced and

14 worst. May we make under point under the general head of crimes against

15 humanity, an issue rubbished by the Prosecution more than once in what,

16 if I may say so, was Mr. Whiting's powerful submissions. Susanne

17 Ringaard Petersen, producing OSCE reports did, I repeat, did speak of the

18 existence and the operation of rogue elements - their witness, not ours -

19 which the KLA she said in her reports were found difficult to control

20 involving instances of personal revenge and the like. If Your Honours

21 note, cross-referencing Defence brief paragraph 400.

22 We suggest that when one carefully considers the meaning given in

23 this Tribunal's jurisprudence to term such as widespread and systematic

24 in Akajezu [phoen] for example and the word in Blaskic, for example, then

25 the Prosecution case perhaps begins to unravel just ever so slightly.

Page 7492

1 The ICC Statute, interestingly, makes the existence of a policy

2 rather more fundamental than it is elsewhere. So as far as you are

3 concerned, it would appear that while not a requirement for crimes

4 against humanity, nonetheless we would submit the search should be for

5 the policy as a necessary and important but not essential component. So

6 necessary and important is the way we put it. And therefore, we would

7 submit, to give full effect to that definition, if it's a definition that

8 you are prepared to accept, the search should be for a policy that does

9 take matters beyond the isolated, uncoordinated, and the haphazard. And

10 there is, for assistance in this regard, a stark and clear evidential

11 contrast existing in this case to demonstrate both the absence and the

12 presence of the kind of policy that we have been referring to.

13 Taking the Prosecution's case at its highest, compare and

14 contrast, if you would, we submit, the position as between the KLA on the

15 one hand and what I'll generically refer to as the Serb forces, the

16 instrument of the Serb state, the office of state security, call it what

17 you will, as it were; and the latter being populated - we would say

18 infested - by characters such as Jasevic and Sparavalo.

19 Take into account, if you would, we respectfully submit, our 92

20 bis material. Read again the statement of K-05. There you will find the

21 existence of a policy. There you will find the practice of a policy to

22 commit crimes against humanity. DM2, the ECMM report, an incident on the

23 4th of August 1998, the forces of Serb law and order, police officers

24 were burning Albanian houses. Why do you burn someone's house? You burn

25 someone's house to rid them of a home. You burn someone's house to

Page 7493

1 ethnically cleanse your world from them. That is a policy in practice.

2 We suggest it's a comparison that is both helpful and worth making.

3 We can move on to consider under various headings other aspects

4 of the Prosecution's case. So this heading, if you will, is the

5 Prosecution evidence as it relates to Isak Musliu. But before looking at

6 that, may I just stop on the way, as it were, and make a point, a single

7 point, on the indictment. The Trial Chamber will already have noted and

8 will perhaps have noted with interest that it has never been separately

9 alleged in any count on this indictment to which Isak Musliu has pleaded

10 or has been invited to plead that he is alleged to have been charged --

11 or is charged with the mountain -- the murder in the Berisa Mountains,

12 Counts 9 and 10. He is not and he never has been.

13 So let's look, if we may, please, before the next break at the

14 first area where Isak Musliu features. Your Honours, may I indicate what

15 I'm hoping to achieve here. I'm hoping that should you be bothered to

16 want to look at a transcript of this speech later you might be able to

17 put it alongside the Prosecution's final brief and go through their

18 headings and see, I hope in crystallised form, how we respond to each of

19 them by way of a distillation of and I hope a little amplification of,

20 where appropriate, that which we set out at some length in our written

21 final brief. That is its purpose. We hope it goes some way to serving

22 that purpose.

23 So where do we start? The Prosecution's pick up the cudgels, if

24 that word can be translated, under the heading of Limaj's area of

25 responsibility. And they set out a number of matters in that heading in

Page 7494

1 that part of their brief. What I want to light upon is only one, I

2 think. Maybe two, but certainly one. They quote from Isak Musliu's

3 diary at paragraph 22 and they use that in support of the existence of a

4 KLA structure. By virtue of Musliu's reference to training on arrival

5 being "designated tasks and pseudonyms," it's apparent, they say, and I

6 quote them, paragraph 22, that "already by this time in April 1998, Limaj

7 was known as Commander Celiku."

8 Well, may I please simply invite the Tribunal to look at the

9 transcript, not now but later, page 502 to 505, and may I also please

10 invite the Tribunal if it thinks there's any teeth in the Prosecution's

11 submission about this diary to look at the diary itself. It's Exhibit

12 P4. You will see and you will note that the diary is not alike a diary

13 that any of us may have in our pockets, at least in the form that's

14 before us here; it goes forwards and backwards. And the passages that

15 they quote from to make the emphatic point they make is headed a "delayed

16 diary."

17 You'll see a date in June, the 11th, and the next entry is June

18 the 2nd. Your Honours, there's been no evidence regarding this diary,

19 other than it being produced by way of commentary, as it were, by Mr.

20 Lehtinen when he gave evidence at the very beginning of this trial.

21 Yet - yet - this warrants comments about it in paragraph 22 of the

22 Prosecutor's brief that it is clear and it is apparent and plainly.

23 Well, we submit, not so. Beware the confident assertion, which here is

24 we suggest without any evidential basis whatsoever regarding this diary.

25 Also relied upon -- there was one other matter on this heading of

Page 7495












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

13 English transcripts.













Page 7496

1 Mr. Limaj's areas of responsibility, one other matter I did want to deal

2 with very briefly indeed, because also relied upon under this head by the

3 Prosecution is a matter that will, I suspect, exercise you more than the

4 diary, and that is the establishment of the 121st Brigade on the 6th of

5 August, 1998, or thereabouts, which, it is suggested, merely as it were

6 formalised an already existing structure.

7 Well, there is, we suggest, sufficient evidence emanating from

8 former KLA witnesses when added to by Crosland and Churcher to suggest

9 that far from being a continuum the formation of the brigade and its

10 development was a response, a response to the significant defeats in July

11 and the significant defects identified in the structure in organisation

12 prior to July. The component parts may have existed, but the structure,

13 we submit, did not until post-August. I was here going to use a

14 cricketing analogy, but I understand that cricket may be a painful

15 subject for at least one member of this Tribunal as I stand here as an

16 Englishman this afternoon, so I'll use a football analogy. The coach may

17 have had a squad of players, but the team and its substitutes was not

18 picked to fight what became a very different game post-August than the

19 one that had been engaged upon prior to August.

20 Mr. Powles has written the word "break now" in his notebook. Can

21 Your Honours indicate when the next one is to happen.

22 JUDGE PARKER: It could happen now or in the next 5 minutes.

23 MR. TOPOLSKI: Could we break now?

24 JUDGE PARKER: Indeed. Resuming at 10 to.

25 --- Recess taken at 5.26 p.m.

Page 7497

1 --- On resuming at 5.53 p.m.

2 JUDGE PARKER: Yes, Mr. Topolski.

3 MR. TOPOLSKI: One comment and two corrections. The comment is

4 if I didn't make clear that as I read the Musliu diary, all entries as

5 are written appear to relate to 1999. Second point is that his diary is

6 P23 and not P4. And perhaps more important than any of that, of course I

7 did not mean to say that it's only the even counts to which armed

8 conflict applies; armed conflict of course applies to the entirety of the

9 indictment.

10 May I move on to deal, please, with the next heading as it

11 appears in the Prosecution's brief, and that is titled "the KLA in

12 Lapusnik." The evidence seems to be that converging on Lapusnik from a

13 variety of different towns and villages came, initially at least,

14 handfuls of men, uncoordinated and without direct leadership. In a

15 ruling that Your Honours gave on the application regarding the witness

16 Behluli and in seeking to summarise his, the witness's, position, with

17 apparent approval the Trial Chamber at transcript page 2.740, described

18 the position prior to the formation of brigades in this way: "Small,

19 volunteer groups or points which operated in isolation from each other or

20 in cooperation only by mutual agreement."

21 We respectfully adopt that as an accurate characterisation of the

22 position, certainly in the spring, if not in the early summer, of 1998.

23 The Prosecution of course would have it and make it very clear that they

24 would have it that it was far more structured and organised than that.

25 Of course amongst these groups that converge on Lapusnik was one

Page 7498

1 containing, it would seem, L-64 and Fadil Kastrati, led to Lapusnik by

2 Alushani and his Zari [phoen] group. This was, it seems, according to

3 L-64, the same group, some of whose members were in the escort business.

4 The Prosecution assert in effect that the 9th of May saw the

5 permanent and secure establishment of the KLA in Lapusnik, which we

6 submit was, as further battles showed over the next weeks, anything but

7 secure. For, within 12 weeks or so they were of course ousted. To the

8 Prosecution no longer was the KLA here about hit-and-run, but they were

9 about securing and holding a strategically important area. So it is that

10 Celiku 3 is born, fighting positions are established, units and shifts

11 recorded in notebooks, an HQ is established, roadblocks are established

12 and so on. A source, some may say the main source, of the evidence

13 touching on these matters, at least before you, comes from no less a

14 quarter of honesty, truth, and reliability than L-64 himself. From him

15 comes notebooks, from him digging trenches, creating firing positions,

16 from him evidence regarding the HQ. From him, but not only him, evidence

17 regarding rules. From him, evidence of Musliu's power to discipline and

18 so on and so forth.

19 Another source of some of that material of course is Ruzhdi

20 Karpuzi, a witness declared hostile by Your Honours. May we have a word

21 or two now on him. Karpuzi told you in cross-examination the following:

22 He got a uniform in December of 1998; he got to Lapusnik by tractor and

23 by foot; he was the one who placed tabs on the plan or one of those who

24 placed tabs on the plan to show positions; he said Voglushi was elected

25 one of the leaders and then Qerqiz:

Page 7499

1 "We asked Voglushi to become a leader for us. Qerqiz was not

2 elected to become the one and only commander in Lapusnik," he said. I

3 tried as best as I could in cross-examination to, as it were, nail that

4 down.

5 "Q. I suggest Qerqiz was elected to become the leader of one of

6 the units in Lapusnik.

7 "A. You are right."

8 He was at position number 1; who was his leader there? Last name

9 Zogi, pseudonym Mjeshtri. He kept records of soldiers. He told you, it

10 was absurd to suggest, as L-64 had, that he kept records of prisoners.

11 Qerqizi sang in the oda in the compound; hardly, as Your Honours may

12 think, evidence designed to assist Musliu, assuming he was hostile to the

13 Prosecution. But that of course is a matter for you upon which you have

14 ruled.

15 Went no where else in the compound did this witness, apart from

16 the oda. The Prosecution of course would have it that everyone who

17 walked through those gates knew or must have known what was happening

18 within them. And may we observe this on the application to turn this

19 witness hostile: There were four bases for it, or rather four topics on

20 which the Prosecution relied, as we understand the transcript and

21 recollect the argument. They were as to the oath ceremony and Mr. Limaj

22 being a leader; it was as to seeing Mr. Limaj in Lapusnik; it was as for

23 Mr. Limaj being called Celiku; and it was as matters regarding Shala.

24 Therefore, the application did not involve anything regarding all he'd

25 said up to that point concerning Musliu or structure or organisation,

Page 7500

1 which corresponded to what he agreed in cross-examination by us.

2 Beyond Karpuzi, upon whom in these respects you can rely, we are

3 as we suggested for the most of the remainder of the incriminating

4 material under this head, looking to L-64. Let's be clear. There were

5 trenches and firing positions, of course there were; there were notebooks

6 kept, of course there were; there were diaries; there may well have been

7 places and were places we now call HQ; there were moments requiring some

8 sort of disciplinary action - we put one as part of our case in

9 cross-examination to L-64. But there is, we say, no clear nor reliable

10 evidence that Musliu either was or performed sufficient acts to

11 demonstrate that he was in anything like the position the Prosecution

12 claimed for him. And what is that position? They make it now very

13 clear, I underline the word "now," the commander in Lapusnik and in the

14 camp. That is now their case which logically brings me to their next

15 heading: "The camp in Lapusnik."

16 Four matters are relied on here in support of the assertion that

17 there was a camp in Lapusnik. Witnesses recognised its environs, the

18 area; documents found post-July 26. L-96 and his return there with

19 Jasevic. And Buja's evidence regarding L-07.

20 Paragraph 29 of the Defence pre-trial brief states our position,

21 we submit, very clearly. We submit, we hope with equal clarity, that our

22 position has not changed. Our duty, as we perceive it, has been to test,

23 explore, and examine the Prosecution's case. We have positively asserted

24 by calling no other evidence no other case. We have called no evidence

25 on this or any other point. Our position remains unchanged. If there

Page 7501

1 was such a place, Isak Musliu was not involved in it or with it.

2 The role of the accused in Lapusnik and the camp. Here we'll

3 divide it up in two parts, the command role and the role of individual

4 responsibility. Can I deal first then with the command role as pleaded.

5 The case here of course is that Musliu was Limaj's subordinate commander.

6 There is no real dispute at trial, say the Prosecution at paragraph 117,

7 that Musliu was the commander of Celiku 3 in Lapusnik. Your Honours, in

8 the light of Mr. Fatmir's evidence to that very effect, it does not lie

9 in my mouth to argue with that, but I can assure Your Honours that there

10 is a real dispute that Musliu was the commander at Lapusnik as opposed to

11 a commander. And we are not here seeking to dance on the head of a pin.

12 There was more than one unit in or around Lapusnik. There was no, we

13 submit, overall commander. There was not a commander by the name of

14 Qerqizi in overall command of that village. I hope that makes it clear.

15 Here we rely on something that the Prosecution in its speech

16 pours scorn upon. We rely on Musliu's own description of his own role in

17 that extremely important interview of his dated the 24th of May of 2001.

18 This, say the Prosecution in closing, is an interview that contains

19 deliberate lies. We submit not. But why is it that we give it the title

20 "extremely important"? May I develop our reasons.

21 This was Musliu being interviewed as a witness, not as a suspect.

22 He was alone without any representation. This was nearly two years

23 before he was arrested. You may think we would positively invite you to

24 find the following six things about this interview: one, when

25 interviewed he would have had no reason to feel under suspicion; two, he

Page 7502

1 was at the time of the interview a serving police officer, to he may be

2 taken to know and to appreciate the importance of where he was and what

3 he was being asked; three, he would, you may safely conclude, at that

4 point know nothing of international humanitarian law, and in particular

5 nothing like enough about the complexities of armed conflict or crimes

6 against humanity to be able to be cagey or worse when asked about what

7 position he held; fourth, in plain English he could not know that four

8 years down the line the Office of the Prosecutor of this Tribunal would

9 seek to portray him as a commander; fifth, he would not, you may think,

10 have been alert nor particularly on his guard, for he would have had no

11 reason to be; sixth, you may conclude, therefore, that he gives here in

12 this interview an honest and accurate answer and one which - and how,

13 Your Honours, could he possibly know this? - chimes in with the very

14 position he now takes: I was a team leader; I was one of others; I was

15 not the commander for all; there were other units and other commanders.

16 What else do the Prosecution rely upon to suggest that Musliu was

17 the commander? L-64, the position 1 logbook showing an apparent visit by

18 Ambassador Hill speaking to a Commander Qerqiz at 4.00 on the 26th of

19 June, 1998, to be exact. Dr. Gashi's evidence and Fatmir Limaj, of

20 course, saying that he was the commander of Celiku 3. Put all those

21 together, say the Prosecution, and you have powerful evidence he was the

22 commander. Well, let's deal with these in turn.

23 L-64 said he did not know if Qerqizi had arrested or given orders

24 to arrest, but only he knew he could enter the prison, which he saw him

25 do, he says, on two or three occasions. How did he put it, L-64?

Page 7503

1 Transcript 4847:

2 "My opinion about him is that he was a commander, but I'm not

3 saying he was in charge of the prison or that he had any responsibilities

4 but he was a commander above the soldiers there, that is true."

5 L-96 is worth remembering as the only other witness who gives

6 evidence about Musliu's involvement in the camp. Ramiz Qeriqi said this,

7 3.595: Musliu "could have been a platoon commander in charge of 20

8 soldiers, not more;" possible. I'm not accurate. "Commander of a

9 platoon."

10 When Fadil Kastrati in around June or July sought permission to

11 leave Lapusnik, he was, we submit, not clear who the right person was to

12 speak to. When he did finally speak to Qerqiz it was rather more of a

13 discussion or a consultation than Qerqiz actually giving him permission.

14 For Your Honours' note, transcript 2.610 to 11.

15 Byslym Zyrapi visited Lapusnik in May and June. On one of three

16 visits, the commander of Lapusnik, he said, introduced himself. What was

17 his name? Voglushi. Transcript 6826. That of course doesn't get a

18 mention by the Prosecution at all.

19 Shukri Buja spoke of a commander for each of several units. He

20 implied, you may think, that Qerqiz or Voglushi were in charge of

21 Lapusnik but he was also, you may think, somewhat ambiguous about it.

22 But in any event, in any event, any business - you may remember the

23 word - Buja had he seems to have conducted with Voglushi. On that, he

24 was clear. But he was not entirely clear, we submit, as to who overall,

25 if anyone, commanded.

Page 7504

1 Well, the Prosecution nonetheless, uninhibited as they are, bold

2 as they are, go on to submit in brief and orally that Voglushi Alushani

3 was a deputy commander regarded by some as a leader. Well, I don't know

4 where the evidence is for that. They seem to think it's here. It's not

5 a case I've heard if I may respectfully submit.

6 Logbook 1 and this visit by the ambassador. May I simply say

7 this about it: Its provenance, accuracy, has not for the purposes of

8 this point been sufficiently or at all, still less satisfactorily, aired

9 to entitle the Prosecution, in our submission, to make such an emphatic

10 point about it. No evidence has been given, none, as to where, when, and

11 in what circumstances this entry was placed in the book. Dr. Gashi did

12 say, did day, that he understood Qerqiz to be the leader of the KLA in

13 Lapusnik. That is true. But he was cross-examined and in that

14 cross-examination did importantly concede, you may think, that he had no

15 personal knowledge in fact about who commanded the KLA.

16 And finally, and importantly, and we do not seek to step around

17 it or through it or underneath it or over it, Mr. Limaj made clear that

18 Mr. Musliu was or became the commander of Celiku 3. Your Honours, he

19 was, as we have been at pains to remind you, clear that there were other

20 units at and in Lapusnik, Guri and Pellumbi. And indeed on the 25th of

21 July battle, that wasn't all, for Mr. Limaj was to tell you at page 6.539

22 that as it were elements of Celiku 1 and 2 also participated in the

23 fighting at that time.

24 So where are we on this important topic of Musliu's role, his

25 command role, it is said both in Lapusnik and in the camp? Well, our

Page 7505

1 comments and our submissions are set out under various heads between

2 paragraphs 1.008 and 1.035 in our brief. No witness we have been

3 considering claims that Musliu was the commander responsible for crimes

4 within a prison or even the commander responsible for the prison or for

5 soldiers within the prison. The only two we suggest - the only two, we

6 suggest, that come anywhere close to asserting otherwise are L-96 and

7 L-64.

8 What's L-96's claim? It comes to this: He claims Musliu told

9 Murrizi to tie his hands. L-96 spoke in doubtful terms, we submit, of

10 knowing what role Musliu actually played or what command he had. But may

11 we make this submission: Based on the appeal of Josipovic, the appellant

12 in the Kupreskic case, paragraphs 354 to 357 of that appeals judgement

13 that even if, even if, this Chamber was attempted to accept L-96 on this,

14 we submit that such simple instructions that could be given as much to an

15 equal as well as a subordinate is not evidence of de jure or de facto

16 command. I hope that's clear.

17 L-64 accepted under cross-examination that he didn't know

18 anything about the command structure. "I knew some names," he said, "but

19 I didn't know what functions or grades they had." Page 4.708.

20 And then we come to the beer incident claimed by L-64 and used by

21 the Prosecution in their brief to support the proposition that Mr. Musliu

22 had power to prevent or punish, sending a man home with a kidney problem

23 because he was drinking beer, according to L-64. Well, even if true, and

24 we suggest in fact L-64 is using this to divert from or cover up his own

25 disarming, this incident cannot and should not be taken as proof that

Page 7506

1 Musliu did indeed have power to prevent or punish the criminal conduct

2 alleged against him in this indictment.

3 L-64 also made claims that Musliu had authority to release

4 prisoners. As I understand this case, we have had no evidence from any

5 ex-prisoner or any KLA witness to support any releasing role for Musliu,

6 nothing beyond L-64, nothing to confirm, still less to corroborate L-64

7 on these matters, who, as we shall be submitting in due course, one would

8 not willingly convict one's dog on the evidence of L-64. So that deals

9 with command.

10 May I turn to individual responsibility. Evidence of personal

11 participation in the camp's operation as against our client come from

12 L-64 of course and L-96. Evidence of physical abuse meted out personally

13 by Mr. Musliu comes, it is said from L-06, 12, 96, and the Bakracs. To

14 say nothing of course of the allegations of murder of five individuals in

15 the camp and one without of it, namely Ajet Gashi.

16 Your Honours, rather than deal here with these matters, we think

17 it would be more helpful to stick to the topics in the order in which

18 they are raised in the final brief of the Prosecution, and therefore to

19 return to personal participation in murder, as alleged, when we come to

20 deal with crimes in the camp. We hope that is a more convenient and

21 helpful way of setting out our submissions.

22 The next heading in the Prosecution's brief is identification

23 evidence. I've dealt with that and have nothing more to say about it.

24 So I can move on to their next heading which is "KLA policy of targeting

25 collaborators." I've touched on policy in the context of crimes against

Page 7507

1 humanity already. This heading "KLA policy of targeting collaborators."

2 We all remember this case was opened upon the basis that this was not a

3 case against the KLA, but I move on. While accepting, as they must, that

4 a warring party has the ability to deal with genuine, internal security

5 threats, the Prosecution of course make the point that all such conduct

6 must be subject to international humanitarian law in an armed conflict

7 and no one could possibly disagree with that.

8 The evidence of Safiulin, the Russian journalist, we suggest,

9 demonstrates that up until the point of the alleged ill-treatment and

10 worse of another member of his party, the conduct of that camera crew on

11 that day in war, in a war zone, verged on the reckless, justifying at the

12 very least in the heart of that war zone their being stopped, detained,

13 and interrogated. Of course nothing I've just said should be taken as

14 intending to or in fact excusing or explaining that which apparently then

15 happened to their interpreter. Of course not. But likewise, we do

16 suggest that routine stop and search of cars and so on at a roadblock for

17 however long the roadblock was there cannot be any sense objectionable.

18 The key question here of course is whilst their policy to target

19 collaborators and did Musliu play his knowing part in implementing it?

20 Your Honours, Mr. Krasniqi was on any view a significant figure

21 in the KLA and an important witness in this trial. He was, as you will

22 recall and you may agree, an intelligent man, an articulate man, a man

23 who, may I say, clearly wished to present himself in a particular way to

24 the Tribunal. It may have seemed at times, of course it's a matter

25 entirely for you, that he was a touch arrogant, dismissive, and sometimes

Page 7508

1 unfeeling and uncaring when dealing with some aspects of the collaborator

2 issue. But clearly his definition of collaborators as recruits of the

3 Serb security services, those, as he put it, who "served the violent Serb

4 regime," justified to him detention, interrogation, and even, in extreme

5 cases of course, their execution.

6 He gave clear and unequivocal evidence, however, that it was no

7 part of KLA to kidnap, torture, or murder the innocent, evidence we

8 invite you to accept. We submit no such policy existed and the attempt

9 to prove it via, for example, Krasniqi communique fails, in our

10 submission. We respectfully remind the Trial Chamber to be wary of and

11 skeptical about drawing positive and adverse inferences based on

12 statements and declarations spewing confetti-like from both sides. The

13 first casualty in war is the truth, and it may be helpful to keep that

14 maxim in mind.

15 Can I turn, then, to the Prosecutor's next heading and, you may

16 think, the focal point of this trial: Crimes at the camp, the range of

17 conduct of course alleged here against Mr. Musliu for which it is said he

18 is responsible, both as a commander and as a perpetrator. What we'll do

19 is we'll highlight and comment upon the Prosecution's position and then

20 summarise and comment upon our own submissions, again, as it were, to

21 enable you to lay them side by side.

22 Kidnappings and arrest. Let's start with that because that's

23 where they start. Part, of course, of the joint criminal enterprise.

24 It's not suggested nor is there any evidence to suggest that Musliu was

25 personally involved in this aspect. It's interesting, we observe, that

Page 7509

1 considering, it is said, that others hold positions of authority and

2 responsibility were involved in this aspect, it is curious, to say the

3 least of it, that if so intimately concerned, there is not one piece of

4 evidence that places Musliu at or near the scene of a single kidnapping

5 or arrest.

6 Conditions of detention. L-04 spoke of Qerqizi removing Ademi

7 and Ahmeti, leaving two Serbs behind. May I interrupt myself. I asked

8 that a glossary of the pseudonyms is placed before Your Honours. When

9 we're dealing with this part of the evidence and this group of witnesses

10 it's sometimes helpful just to remind ourselves who is who.

11 L-04 did not know their names of the two men who removed Ademi

12 and Ahmeti and was then asked, you may think, I certainly submit, one of

13 the worst examples of a leading question in this whole trial. He's gone

14 now, so I can be rude about him. Mr. Cayley said:

15 "Q. Was it Qerqizi who took the two Serbs out?"

16 Well, warned by Your Honour to take a little more care, the

17 inevitable confirmatory answer was given by the witness. By the way,

18 these men die, it is said, at the hands of Isak Musliu without there

19 being any further evidence of any act carried out by him. But we'll come

20 back to murder later.

21 Interrogation is the next heading. Here it's alleged of course

22 that Musliu was directly and personally implicated. And we'll look at

23 what relevant witnesses had to say in due course in a little detail. But

24 a comment, a comment here, if we may, on the Prosecution's recommended

25 use of evidence by way of corroboration. This is an important example of

Page 7510

1 the care that's required, we submit.

2 As we've seen, Vojko Bakrac described, say the Prosecution,

3 interrogation of Stamen Genov by Musliu, who referred to him as the

4 sergeant. So the Prosecution advanced that there is corroboration for

5 that piece of incriminating evidence. What do they point to? Genov's

6 own recovered statement describing his work as a medic in the JNA.

7 That's their submission, that that's corroboration of that identification

8 of him as the man who beat Genov; it's not corroboration of anything, we

9 submit, still less Musliu's involvement.

10 Beatings and other abuse. The Genov beating is described as one

11 that stands out. I've been through our critique of the Prosecution's

12 position that it was carried out by someone "matching Musliu's

13 description." And then they go on in the next breath to say that it was

14 Musliu. That, we suggest, is an exercise in legalistic intellectual

15 gamesmanship of the worst kind. This defendant is charged with murder,

16 and the best they can do is suggest that he matches the description of a

17 torturer. It's not good enough.

18 Killings. By his own hand he's accused of killing the people

19 familiar to us on the list, but not now Sinisa Blagojevic. With

20 confidence, just taking Ademi and Ahmeti as examples, the Prosecution

21 assert that they have proved beyond reasonable doubt that they were

22 murdered after being taken out of the cowshed by Isak Musliu. They go

23 further. In fact, they allege they were murdered by Isak Musliu. We'll

24 come back to murder in a moment or two.

25 So let's look at our submissions in response. And what we're

Page 7511

1 looking at now of course is Musliu's liability pursuant to Article 7(1)

2 in relation to murder and we're going to travel up the indictment for the

3 last part of today. Counts 7 and 8, torture, inhumane acts, and cruel

4 treatment, 3 to 6, imprisonment and cruel treatment, Counts 1 to 2.

5 Your Honours, may I pause to say I won't finish this afternoon.

6 If at any stage the Court feels it's heard too many speeches and too much

7 today, I know the Court will stop me and I will find a moment. We

8 appreciate it's difficult to listen to one voice, however attractive it

9 may be, for any length of time.

10 [Trial Chamber confers]

11 JUDGE PARKER: Is there any thought at the moment, Mr. Topolski,

12 as to how long you might be now?

13 MR. TOPOLSKI: I won't finish tonight, but I'll finish within the

14 first session tomorrow even if I stop now.

15 [Trial Chamber confers]

16 JUDGE PARKER: The invitation is too tempting.

17 MR. TOPOLSKI: I thought it might be.

18 JUDGE PARKER: We will adjourn now and resume tomorrow at 2.15,

19 Mr. Topolski.

20 --- Whereupon the hearing adjourned at 6.33 p.m.,

21 to be reconvened on Thursday, the 1st day of

22 September, 2005, at 2.15 p.m.