Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2611

1 Monday, 16 April 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.22 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 The Chamber would like to start with giving a decision on a

11 request for protective measures for Witness 21. On the 3rd of April,

12 2007, the Prosecution requested the Chamber to allow Witness 21 to retain

13 his earlier granted pseudonym and as well to grant face and voice

14 distortion. The Defence has not opposed this application.

15 As the Court has stated on prior occasions, the party seeking

16 protective measures for a witness must demonstrate an objectively grounded

17 risk to the security or welfare of the witness or the witness's family,

18 should it become known that a witness has given evidence before the

19 Tribunal.

20 In the present case, it appears that the witness has received

21 threatening telephone calls in attempt to prevent him from testifying in

22 this court. Moreover, the witness's close family has suffered damage to

23 property and the witness has had problems with his employment situation,

24 possibly due to his imminent testimony. The witness's family is still

25 resident in the region. These indications fulfil the Chamber's

Page 2612

1 requirements for grants of protective measures. The Chamber therefore

2 grants the request for pseudonym and face and voice distortion.

3 This concludes the reasons for the Chamber's decision on

4 protective measures for Witness 21.

5 And Mr. Dutertre, are you the one who will deal with Witness 21?

6 MR. DUTERTRE: [Interpretation] Yes, Your Honour, I am.

7 JUDGE ORIE: And are you ready to call Witness 21?

8 MR. DUTERTRE: [Interpretation] Yes, indeed, Your Honour. With an

9 indication, if I may. We have prepared for part of his testimony a

10 consolidated document. We would like to submit this document to the Court

11 according to Rule 92 ter. The witness will be here. Cross-examination

12 will be carried out, and the Chamber will also be free to ask questions,

13 and he will be able to confirm that his testimony will reflect his

14 statement.

15 I've also prepared a short summary of this consolidated statement,

16 and if you agree, of course, after we've confirmed identity details in

17 closed session I will be in a position in open session to read this brief

18 statement. And then I could start with the examination-in-chief of this

19 witness.

20 JUDGE ORIE: Has the Defence received a copy of the consolidated

21 statement?

22 MR. EMMERSON: Your Honours, we have. There is no objection to

23 the Court's proposed subject to this, at least as far as the Haradinaj

24 Defence team is concerned that is the position. We would respectfully

25 request that the summary, if it is to be read into the record, be read

Page 2613

1 into the record in the absence of the witness rather than in his presence

2 and translated to him.

3 JUDGE ORIE: Yes. I -- the purpose of reading it into the record

4 is mainly to inform the public about it, not to remind the witness of what

5 in summary his evidence is.

6 Mr. Dutertre, you would agree with that?

7 MR. DUTERTRE: [Interpretation] I have no objection, Your Honour.

8 JUDGE ORIE: Then as far as the other Defence teams are concerned.

9 Mr. Guy-Smith, any objection any against introduction through 92

10 ter?

11 MR. GUY-SMITH: No objection.

12 JUDGE ORIE: Mr. Harvey?

13 MR. HARVEY: No objection, Your Honours. Thank you.

14 JUDGE ORIE: Thank you.

15 Then, Mr. Dutertre, you may proceed as you suggested. Therefore,

16 then, I think it would be best then to start with the summary to inform

17 the public that later when the witness appears no further questions will

18 be put to him in relation to what is in his statement, a statement which

19 is, I take it, to be admitted under seal due to the protective measures,

20 and that therefore I also take it that the summary -- that you have taken

21 into account that the summary does not reveal any identifying elements.

22 Then, please proceed before we ask the usher to bring the witness

23 in, but perhaps the usher could already prepare for that situation.

24 Mr. Dutertre.

25 MR. DUTERTRE: [Interpretation] Indeed. Thank you very much, Your

Page 2614

1 Honour.

2 This consolidated witness statement which was sent to the Chamber

3 yesterday has also annexes and it will be tendered under seal to protect

4 the identity of Witness 21. We've also redacted as much as possible

5 identity details in the brief summary, i.e., the names of victims are

6 kept, but we've tried not to mention the existing links.

7 I'd like to read in English this brief summary.

8 [In English] "Witness 21 is a Catholic Albanian male. In 1998 he

9 was living near Djakovica in Kosovo.

10 "Illira and Tush Frrokaj went missing in KLA territory sometime in

11 August 1998. They were both Catholic Albanians, and both lived in

12 Pljancor.

13 "The witness last saw them in the house in Pljancor on the

14 morning of the day they left Pljancor for Nepole, Peje municipality. He

15 was told they had left later that day to visit Illira's sister in Nepole.

16 Tush's mother said they left in the family car, a dark red Opel Kadett.

17 "The safest route through KLA-controlled area to Nepole in 1998

18 was from Pljancor through Dujak, Gramaqel, Dubrave, Gllogjan, Rznic, and

19 Ratis.

20 "Tush's mother reported late that night that Tush and Illira had

21 not yet returned. The family waited until after midday the next day and

22 reported their disappearance was reported to the Djakovica police. The

23 police said that they had not detained Tush and Illira Frrokaj nor was

24 there a report of their car having been in an accident.

25 "Tush's brother-in-law reported that Illira and Tush never

Page 2615

1 arrived in Nepole.

2 "Two days after Tush and Illira disappeared, a Roma confirmed

3 that he had seen Tush and Illira driving from Pljancor on the asphalt road

4 turning right towards Dujak in the early afternoon the day they went

5 missing.

6 "The witness then travelled with two other of the -- to the first

7 KLA check-point at the entry to Gramaqel village.

8 "Five KLA soldiers were present at the check-point in Gramaqel.

9 Two soldiers explained to Witness 21 that they had been present along with

10 two other KLA soldiers when Tush and Illira had passed through the

11 check-point. They allowed Tush and Illira through, but advised Tush

12 against driving through.

13 "One of those went with Witness 21 on to Gllogjan. He told the

14 witness that the KLA soldiers at the entry check-point told him that a red

15 Kadett had passed through after Balaj questioned the occupants.

16 "This person then travelled to the Gllogjan exit check-point

17 where KLA soldiers told him that the car had not passed through that

18 check-point.

19 "The following days, the fourth or fifth days after Tush's and

20 Illira's disappearance onwards, Witness 21 and that person went back to

21 the entry and exit check-points in Gllogjan. The witness spoke on

22 different days to different KLA soldiers at the check-points. The

23 soldiers repeated what they had earlier told the other person about Balaj

24 interrogating the occupants of the Kadett for half an hour at the

25 entry-point to Gllogjan. The witness also heard from the guards at the

Page 2616

1 exit check-point to Gllogjan that Tush and Illira never passed that

2 check-point.

3 "The following day the witness heard that there were -- that

4 there were two bodies in the Lake Radonjic canal area.

5 "He then went with another person to KLA headquarters in

6 Gllogjan. Witness 21 met Ramush Haradinaj's brother Shkelzen, who asked

7 for Tush and Illira's photograph and said the KLA would search for them.

8 Shkelzen then gave him a handwritten authorising to travel in the Dukagjin

9 zone.

10 "The witness then went with the other person to the canal, where

11 the other pointed out the dead bodies.

12 "The witness did not know Idriz Balaj. He met him twice in his

13 search for Tush and Illira, but Balaj refused to speak to him."

14 [Interpretation] This concludes the reading of the summary, Your

15 Honour.

16 MR. EMMERSON: Three brief matters, if I may.

17 JUDGE ORIE: Yes, Mr. Emmerson.

18 MR. EMMERSON: First of all, just to make it absolutely clear,

19 it's obviously the position the Prosecution does not intend to elicit that

20 evidence in chief from the witness, but it is the intention of the Defence

21 to ask questions arising from that statement in that account in the course

22 of cross-examination.

23 JUDGE ORIE: Yes, that's understood.

24 MR. EMMERSON: Secondly, there was an error in the reading out of

25 the summary which is of some material significance. Page 5, line 7 of the

Page 2617

1 transcript is -- was a misreading of the first sentence of paragraph 10 of

2 the written summary. Paragraph 10 of the written summary records that one

3 of those who had been, that is one of those with Witness 21, then went to

4 Gllogjan, whereas paragraph -- page 5, line 7, records one of those went

5 with Witness 21 to Gllogjan. The important distinction is, and as I

6 understand it this reflects the evidence, Witness 21 was not with the

7 person who went to Gllogjan to make those inquiries. That is accurately

8 reflected in the written summary, but is inaccurately reflected in the

9 misreading of that sentence on the transcript.

10 JUDGE ORIE: I see Mr. Dutertre nodding yes, so it seems that he

11 agrees.

12 MR. DUTERTRE: [Interpretation] Yes, yes.

13 JUDGE ORIE: [Previous translation continues]... point

14 Mr. Emmerson.

15 MR. EMMERSON: And finally, paragraph 15 of the written summary,

16 the witness then went with the other person to the canal, where the other

17 pointed out the dead bodies, is not reflected in the 92 bis statement; in

18 other words, that passage is not part of the 92 bis statement, which

19 ceases just before that part of the chronology.

20 MR. DUTERTRE: [Interpretation] Unless I'm mistaken, Your Honour,

21 I've just checked. In paragraph 57 of such consolidated statement, it is

22 indicated, this particular fact.

23 MR. EMMERSON: I apologise and withdraw that third point.

24 JUDGE ORIE: Yes, that's then all clarified.

25 Mr. Dutertre, are you prepared to call the first -- yes, I take it

Page 2618

1 that you'll start by asking the witness to confirm his statement. Are you

2 ready to have the witness be brought into the courtroom?

3 Madam Registrar, I see that the curtains are down. Face and voice

4 distortion are in place.

5 Mr. Dutertre, may I take it that you have fully explained to the

6 witness the procedure of 92 ter so that he's familiar with it? Thank you.

7 Is the consolidated statement in the hands of the registry yet or

8 not? Perhaps we could already distribute it since there seems -- or is it

9 uploaded?

10 MR. DUTERTRE: [Interpretation] It has not been given to the

11 registry yet. I have a copy, but not a colour copy, for the registry and

12 for the parties. Maybe we could just show the document, and then we will

13 give to the registry the final document with colour copies.

14 [The witness entered court]

15 JUDGE ORIE: Yes. Thank you.

16 Good afternoon, Witness 21. You are looking around who's speaking

17 to you; it's me, Witness 21. The Chamber has decided that you'll testify

18 under a pseudonym. That's the reason why I call you Witness 21 and why I

19 do not use your name. And that face distortion and voice distortion will

20 be applied. That means outside of this courtroom one cannot see your

21 face, one cannot hear your voice, although the content of your testimony

22 is public. Before you give evidence, the Rules of Procedure and Evidence

23 require you to make a solemn declaration that you'll speak the truth, the

24 whole truth, and nothing but the truth. The text is now handed out to you

25 by the usher. May I invite you to make that solemn declaration.

Page 2619

1 THE WITNESS: [Microphone not activated].

2 THE INTERPRETER: Microphone, please, for the witness.


4 Could you -- the interpreters could not hear you. Could you

5 perhaps come a bit closer to that microphone and repeat the solemn

6 declaration.

7 THE WITNESS: [Interpretation] I solemnly declare that I will speak

8 the truth, the whole truth, and nothing but the truth.

9 JUDGE ORIE: Thank you, Witness 21. Please be seated.

10 Witness 21, you'll first be examined by Mr. Dutertre, who's

11 counsel for the Prosecution.

12 Mr. Dutertre, you may proceed.

13 MR. DUTERTRE: [Interpretation] Thank you, Your Honour. Are we

14 still in closed session?

15 JUDGE ORIE: We are in open session. Yes, but face distortion,

16 voice distortion, and pseudonym, and since the curtains are down, those,

17 if there would be anyone in the public gallery, would not be able to see

18 the face of the witness.

19 MR. DUTERTRE: [Interpretation] I was just asking to know whether I

20 would have to ask the witness about all identity details to get a

21 confirmation.

22 JUDGE ORIE: If it's just a matter of name and date of birth, you

23 can do it by showing him a pseudonym sheet. If you want to go into

24 further details, you have to apply for private session.

25 MR. DUTERTRE: [Interpretation] Your Honour, I would like 65 ter

Page 2620

1 1219. This, obviously, should not be shown to the public.

2 JUDGE ORIE: That's the pseudonym sheet?

3 MR. DUTERTRE: [Interpretation] Yes, indeed.

4 JUDGE ORIE: Yes, Madam -- Witness 21, would you -- it's under

5 seal.

6 Witness 21, would you look at your screen where you will see

7 something appear soon.

8 THE WITNESS: [Interpretation] Is there something on the screen or

9 what?

10 JUDGE ORIE: Not yet, if you wait for a second.

11 There seems to be -- Madam Registrar, is there any problem in

12 producing the document?

13 [Trial Chamber and registrar confer]

14 MR. DUTERTRE: 1219.

15 JUDGE ORIE: If it remains problematic, perhaps we could work with

16 a hard copy; but if it's ...

17 MR. DUTERTRE: [Interpretation] Your Honour, I suggest that I could

18 put the name on a piece of paper by hand. Unfortunately, it says

19 something on the back of this piece of paper, but we could ask the witness

20 not to look at what it says and simply confirm that this is, in fact, his

21 first name and last name.

22 JUDGE ORIE: But then of course we would need that piece of paper

23 at a later stage. So if there's something written on the back, it might

24 not be the --

25 MR. DUTERTRE: [Interpretation] I shall take another piece of paper

Page 2621

1 then, Your Honour.

2 JUDGE ORIE: And could we at the same time check that we do not

3 have similar problems? Yes.


5 [Witness answered through interpreter]

6 Examination by Mr. Dutertre:

7 Q. [Interpretation] Witness 21, you have before you a sheet of paper.

8 It says something on that piece of paper. Could you tell us whether

9 what's written on that piece of paper is, in fact, your name?

10 A. Yes.

11 JUDGE ORIE: Yes. Could the piece of paper then be shown to the

12 Defence and then to the Bench.

13 I suggest that a number will be assigned to this piece of paper,

14 but I leave open the possibility to have this one replaced by an

15 electronic version.

16 Madam Registrar, that would be number ...?

17 THE REGISTRAR: Your Honours, this will be Exhibit Number P41.

18 JUDGE ORIE: Thank you, Madam Registrar.

19 MR. DUTERTRE: [Interpretation].

20 Q. Witness 21, do you remember having met me last week?

21 A. Yes.

22 Q. Do you remember having made a statement on a part of your witness

23 statement?

24 A. Yes.

25 Q. Witness 21, I'm now about to show you a copy of a document, and

Page 2622

1 you will tell me whether this is, in fact, what you stated last week on

2 part of what you know about this business. This document includes a main

3 part and some additions.

4 A. Yes, this is it. These are the statements.

5 Q. Witness, could you perhaps be more specific and tell us whether

6 this is an exact expression of your statement, in fact, what you would say

7 right now if I were to ask you questions about the various subjects

8 brought up in -- on this paper?

9 A. Yes.

10 JUDGE ORIE: Yes. Then, Madam Registrar -- I don't think the

11 witness would need his statement at this moment.

12 So, Madam Usher, could you please get the statement from the

13 witness, give it to Madam Registrar, so that she can assign a number to

14 it.

15 THE REGISTRAR: Your Honours, this will be Exhibit Number P42,

16 marked for identification.

17 JUDGE ORIE: And under seal, I take it, Madam Registrar.

18 Please proceed, Mr. Dutertre.

19 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

20 Q. Witness 21, we are going to carry on starting at the end of this

21 written testimony. I'm going to ask you questions specifically about this

22 part. Witness 21, we know that the canal Radonjic is for part made out of

23 concrete, another part is natural. Could you tell us exactly at which

24 place on the canal you went the first time that you visited the canal.

25 A. The first time we went to the canal following the Gllogjan road

Page 2623

1 from Ratishe to Gllogjan. We turned right, and before we got to the farm

2 we turned left where the concrete canal divides from the natural canal.

3 When we went there, we saw two bodies in the canal.

4 Q. Thank you for these clarifications. Let's take things in stages.

5 Do you remember having gone to canal Radonjic in January 2007 with Barney

6 Kelly and myself?

7 A. Yes, yes.

8 Q. Do you remember that Mr. Kelly took pictures that day?

9 A. Yes.

10 MR. DUTERTRE: [Interpretation] I would now like to show Exhibit 61

11 ter 992, page 14 -- 65 ter 992, page 14.

12 JUDGE ORIE: I think we have one button at the top which you can

13 make negative or positive, I think. There we are.

14 MR. DUTERTRE: [Interpretation].

15 Q. Witness 21, what do you see on this picture?

16 A. This photo shows where the concrete canal ends and the natural

17 canal begins.

18 Q. Thank you, Witness. Just a few questions so we can find our way.

19 If you follow the canal towards the left, meaning up, where does that take

20 you?

21 A. If you go left, the -- that takes you to Ratishe. If you go down,

22 then that leads you Radoniq, to the lake.

23 Q. On this photograph, where would the village of Gllogjan be, to the

24 right of the canal or to the left? I understand that we don't see the

25 village on the picture. I just want to know which side it would be on.

Page 2624

1 A. It would be on the left of the canal.

2 Q. You have a pen in front of you. Could you draw an arrow pointing

3 in the direction of Gllogjan and put a G next to it to show Gllogjan.

4 A. [Marks].

5 Q. Thank you. Can we see on this picture the actual spot that you

6 went to that day in August 1998, the first time you visited the canal?

7 A. Yes, it's the same canal here. This is where I was, in this part

8 here. Would you like me to mark it?

9 Q. Yes, please. Mark it with a letter --

10 A. Right here.

11 Q. Perhaps with a cross and the letter A, please.

12 A. [Marks]

13 Q. Thank you for that. Now, once you were at the canal, what did you

14 see? You told us two bodies.

15 A. Yes.

16 Q. When did you see these bodies -- where were you exactly when you

17 saw these bodies? From which spot did you actually see them?

18 A. I was at the letter A, where I marked letter A. That's where I

19 was.

20 MR. DUTERTRE: [Interpretation] I would like to keep this picture

21 as it stands, stating that this is a picture taken in 2007, and since then

22 there have been -- there's been renovation work, which is visible on this

23 photograph.

24 JUDGE ORIE: Mr. Emmerson.

25 MR. EMMERSON: Just to be absolutely clear, the renovation work

Page 2625

1 had taken place before these photographs were taken rather than since, and

2 I think Mr. Dutertre was intending to convey that, but lest Your Honours

3 should be misunderstood. And we can see in this series of photographs

4 that there had been some reconstruction going on. It doesn't affect the

5 structure of the photograph you are looking at at the moment, but the

6 reconstruction had already begun by the time these photographs were taken.

7 JUDGE ORIE: Mr. Dutertre.

8 MR. DUTERTRE: [Interpretation] That is very, very -- exactly what

9 I meant to say. When the picture was taken, the work -- the renovation

10 work was not finished, so you see things on this picture that were not

11 there in 1998.

12 JUDGE ORIE: Yes. Thank you for that clarification.

13 Mr. Dutertre, do I understand that you only want to have the

14 marked photograph as an exhibit? Yes.

15 Madam Registrar, that would then be number ...?

16 MR. DUTERTRE: [No interpretation]

17 THE REGISTRAR: Your Honours, this will be Exhibit Number P43,

18 marked for identification.

19 JUDGE ORIE: Thank you. And there's no need to have this under

20 seal, Mr. Dutertre or -- this will be public.

21 Please proceed.

22 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

23 Q. Witness 21, where were the two bodies that you mentioned when you

24 went to the canal? Where were they exactly located?

25 A. They were inside the water, in the canal.

Page 2626

1 MR. DUTERTRE: [Interpretation] I would now like to see evidence 65

2 ter 992, page 17. I was asking for number 17. I think that what we see

3 now is number 24.

4 JUDGE ORIE: Madam Registrar, if you had followed that, it seems

5 that number 24 is on the screen now, whereas Mr. Dutertre asked for number

6 17.

7 MR. DUTERTRE: [Interpretation]

8 Q. Witness 21, what is on this photograph?

9 A. The photo shows the canal, the new part that is being constructed,

10 and then the old part where it used to be.

11 Q. Could you show with two arrows the -- on this photograph the part

12 where we have the beginning of the natural part of the canal in 1998.

13 A. [Marks]

14 Q. Could you indicate this with a letter A next to the arrow.

15 A. [Marks]

16 Q. Witness 21, if it's visible on this photo, could you indicate the

17 position where you saw the two bodies in 1998 the first time that you went

18 to the canal.

19 A. I can show you approximately where they were. I think this part

20 here.

21 Q. Could you indicate this with a letter B, please.

22 A. [Marks]

23 MR. DUTERTRE: [Interpretation] I would like to retain this,

24 please.

25 JUDGE ORIE: Madam Registrar, the marked copy of photo 17 would be

Page 2627

1 number ...?

2 THE REGISTRAR: Your Honours, this will be Exhibit Number P44,

3 marked for identification.


5 No need to have it under seal, Mr. Dutertre, I take it?

6 MR. DUTERTRE: [Interpretation] No, Your Honour.

7 JUDGE ORIE: Please proceed.

8 MR. DUTERTRE: [Interpretation]

9 Q. Witness 21, could you describe the bodies that you saw on that

10 day.

11 A. That day when I went there to see the bodies, when I saw the

12 bodies, they were face-down and they were swollen. And as far as I could

13 see, the man had a black T-shirt, jeans, and black socks, while the woman

14 had a track-suit and T-shirt and, I think, red sandals. I did not know

15 them, who they were.

16 Q. Were the bodies in their entire state?

17 A. Yes, they were whole bodies.

18 Q. Did you see clothing that could have been military clothing or was

19 it just civilian clothing that they had on them?

20 A. As far as I remember, they were not wearing military clothes.

21 They just had this T-shirt, black T-shirt, the male, and track-suit. I

22 did not see military clothes.

23 Q. If you saw any signs of violence on those bodies, what were these

24 signs of violence?

25 A. I did not see any signs of violence, just the bullet-holes, that's

Page 2628

1 all.

2 Q. Where did you see the bullet-holes?

3 A. On their backs.

4 Q. In general, what was the weather like? Was there a lot of rain?

5 A little rain? No rain at all? What is your recollection of the weather

6 conditions on that day in 1998?

7 A. I can't remember.

8 Q. What about the water in the canal on your first visit, was there a

9 lot of water going through the canal? Was there little water? How would

10 you describe it?

11 A. I don't think there was lots of water flowing. There was not even

12 little water flowing. It was an average amount of water.

13 Q. Were the bodies moving in the water because of the flow of the

14 water or not?

15 A. No. The bodies were stuck in a part on the right side.

16 Q. When you say "stuck," could you explain precisely what you mean

17 when you say that they were stuck on the right side.

18 A. They were in the water, but they had stopped. They were not

19 flowing together with the water. They had -- the bodies had stopped on

20 the side of the canal, on this side of the canal.

21 Q. They were stuck by what, do you remember?

22 A. If you can see the B letter that I marked, it's there that they

23 were.

24 Q. What else did you do that day at that particular spot?

25 A. No.

Page 2629

1 Q. How long did you spend in -- as an entire duration, how long did

2 you spend at that particular spot?

3 A. I don't know what to say. Probably half an hour, then we left

4 again.

5 Q. Thank you. That clarifies the previous question.

6 What did you then do? You said that you left. Where did you go?

7 A. Afterwards I went to Prapaqan, to Tahir Zemaj.

8 Q. Who is Tahir Zemaj?

9 A. At that time I knew he was a commander in the area of Peje, in

10 Prapaqan village. I never knew him and I had never seen him before. He

11 was a commander of the KLA in Prapaqan village, Peje municipality.

12 Q. Do you know where Zemaj is today?

13 A. I heard that he was killed. I don't know anything else about it.

14 Q. Thank you. What about Prapaqan, where exactly is it? Could you

15 give us an accurate description of its position.

16 A. In fact, that was the only time I went there. I never went there

17 again. I don't know what else I could tell you.

18 Q. Do you recall which village or villages you went through to get to

19 Prapaqan?

20 A. I know that from the villages that I know, I passed through

21 Gllogjan, Irzniq, and from Irzniq we took a road which I was not familiar

22 with, and that road then took us to Prapaqan.

23 Q. Who was giving you the directions to get to Prapaqan?

24 A. I was with a friend. He gave me the directions for this village,

25 and he accompanied me up to Prapaqan.

Page 2630

1 Q. Was that friend the same one who'd been with you at the canal?

2 A. Yes.

3 Q. Could you give us his name?

4 A. Yes.

5 Q. Witness 21, what is his name?

6 A. His name is -- but first, I apologise, I would like to ask you if

7 this is something that is going out to the public or that is only for the

8 courtroom.

9 JUDGE ORIE: This is also going to the public, unless Mr. Dutertre

10 asks for private session and then -- or ...

11 MR. DUTERTRE: [Interpretation] Your Honour, it is entirely up to

12 you, but I feel that the witness has some difficulty here. If he can

13 state it in public session, then that would be acceptable, agreeable, to

14 us.

15 JUDGE ORIE: Yes. You are -- we hear some hesitation in your

16 voice whether you should give that name or not. Is there anything --

17 could you tell us the reason even if that should be done in private

18 session, why you would rather not give the name in public. Perhaps we'll

19 turn into private session and hear from the witness on the matter.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2631











11 Pages 2631-2634 redacted. Private session.















Page 2635

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 JUDGE ORIE: Mr. Dutertre.

15 THE REGISTRAR: Your Honours, we are back in open session.

16 JUDGE ORIE: Thank you.

17 You may proceed, Mr. Dutertre.

18 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

19 Q. Witness 21, I'm putting this question to you, but it is true that

20 the answers are given to the Court. So perhaps you could look to Your

21 Honours rather than looking at me when you give the answer, because the

22 answers are for the Court and also for Defence counsel as well.

23 So person number 1 gave you the directions. When you went through

24 Irzniq, did you go through check-point -- did you go through a

25 check-point?

Page 2636

1 A. Only the check-point at Gllogjan, at the exit of Gllogjan, then we

2 continued to Irzniq and to some other villages that I don't know, and we

3 arrived finally in Prapaqan.

4 Q. Did you note the presence of KLA soldiers when you were on your

5 way to Prapaqan; and if so, where?

6 A. I did see soldiers in villages, but I don't know those villages.

7 Q. And in the village of Irzniq?

8 A. Yes.

9 Q. How did you know that these were KLA soldiers?

10 A. Some of them had uniforms, KLA uniforms. So we spoke with them.

11 Q. Could you describe those uniforms that you're referring to as KLA

12 uniforms.

13 A. Those were the KLA uniforms. I don't know how I should describe

14 them. These were military uniforms, grass green. There were some with

15 mixture of colours, camouflaged, green grass colour with -- mixed with

16 other colours.

17 Q. Were they wearing any insignia?

18 A. Only the KLA military insignia.

19 Q. You said that you spoke to them. To whom precisely did you speak?

20 A. I don't know them. We spoke to some, but I don't know those

21 persons, who they were.

22 Q. What was the subject of your conversation? What did you say to

23 them?

24 A. These were informal chats, things that you usually talk about with

25 friends.

Page 2637

1 Q. Fine. Once you got to Prapaqan, who did you see?

2 A. In Prapaqan we met with Tahir Zemaj.

3 Q. And what did you say to him?

4 A. I asked him to help me find (redacted). I

5 informed him -- I gave him some information about some military

6 [as interpreted] movements. He said to me that he will help me find them

7 and that if they had entered KLA territory, he would do his best to find

8 them, dead or alive.

9 JUDGE ORIE: Yes. Mr. Dutertre, I asked for a -- for striking out

10 a couple of words. I take it that you understand what it is, and would

11 you please consider carefully when it will be needed to go into private

12 session. Please proceed.

13 THE INTERPRETER: Interpreter's correction: Line 25 should

14 read "their movement," not "military movement."

15 JUDGE ORIE: That's on the record. Thank you.

16 Please proceed, Mr. Dutertre.

17 MR. DUTERTRE: [Interpretation]

18 Q. Witness 21, what did you do afterwards once you had that

19 discussion with Tahir Zemaj?

20 JUDGE ORIE: And perhaps I -- Witness 21, if you are referring to

21 missing persons, just say "missing persons" instead of giving further

22 details which might enable other persons to find out who you are. Do you

23 understand that?

24 THE WITNESS: [Interpretation] Thank you.


Page 2638

1 Please proceed, Mr. Dutertre.

2 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

3 Q. What did you do once you had that conversation with Tahir Zemaj,

4 Witness 21?

5 A. After this conversation, we returned to Dubrave at friend number

6 1's place, and then we agreed to meet the next day. We met the next day

7 again.

8 Q. Where did you meet the next day, at what location?

9 A. In the village of my friend, where his house was.

10 Q. I'm going to put a question, but this will bring up the problem

11 that we had previously. Were there other persons with you when you met

12 person number 1?

13 A. Yes. There was another friend, who is also related to me, he is

14 (redacted)

15 JUDGE ORIE: Mr. Guy-Smith.

16 MR. GUY-SMITH: Yes. After conversation with my colleague

17 Mr. Emmerson and having watched the way the testimony has been proceeding,

18 I think that it's going to get to a point of being really highly

19 unworkable in terms of dealing with the various people that we're talking

20 about, and perhaps it would be best to just do the whole thing in closed

21 session and afterwards --

22 JUDGE ORIE: See whether there are portions that could be made

23 public without --

24 MR. GUY-SMITH: Yes. Because it's just becoming -- I think it's

25 realistically just becoming too cumbersome.

Page 2639


2 Mr. Dutertre, I take it there's no objection against this

3 suggestion.

4 We'll then turn into private session.

5 MR. GUY-SMITH: I would however --


7 MR. GUY-SMITH: I do, however, maintain my objection to proceeding

8 along the basis of letting these names not being public; however,

9 understanding the Chamber's ruling I would make this as a suggestion

10 because this is becoming much too cumbersome.

11 JUDGE ORIE: Yes. Thank you.

12 Mr. Emmerson.

13 MR. EMMERSON: Just further to that, can I indicate that it is

14 going to become essential for Your Honours to have a grasp of who is who

15 and where is where in the course of cross-examination of this witness.

16 There are two portions of his evidence which on their face would not

17 necessarily need to be in private session. One, he has already dealt

18 with, that is to say, the description of what it was he saw and where he

19 saw it at the time of his first visit to the canal; and the second is the

20 description of what he saw and where he saw it at the time of his second

21 visit to the canal. All companions and associations along the way fall

22 into the category that Your Honours have indicated. So if we are to move

23 into open session, those might be the two areas where it could be dealt

24 with without any risk at all.


Page 2640

1 Mr. Dutertre, I -- let me just first ...

2 [Trial Chamber and registrar confer]

3 JUDGE ORIE: Mr. Dutertre, we'll turn into private session, and

4 you may proceed.

5 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

6 JUDGE ORIE: We're not yet in private session for unknown reasons,

7 but ... I wonder why we are not in private session where there seems to be

8 some turmoil in the technical booth.

9 [Trial Chamber and registrar confer]

10 JUDGE ORIE: There seems to be a technical problem as far as

11 private and public session is concerned; for that reason, the Chamber

12 would like to have a break a little bit earlier than usual. We will have

13 a break until five minutes past 4.00.

14 --- Recess taken at 3.38 p.m.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2641











11 Pages 2641-2678 redacted. Private session.















Page 2679

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 JUDGE ORIE: Before we continue I would like to deal with a few

10 procedural matters. The Chamber has invited the parties to make further

11 submissions on Witness 8. The question was deadline and whether it would

12 be simultaneously or sequential --

13 MR. EMMERSON: Just before Your Honour gives an indication, I had

14 an opportunity to discuss this very briefly with Mr. Kearney earlier this

15 afternoon. I don't know whether he has anything he would want to add to

16 his position.

17 MR. KEARNEY: Your Honour, I don't, except that my colleague had

18 suggested the fact that we -- since we hadn't received word from the Trial

19 Chambers about a scheduling that would take -- that the Prosecution take

20 the matter under submission as to how it wants to proceed with this

21 witness. We had talked about that briefly. We hadn't come to a

22 conclusion, frankly. We put ourselves in the Trial Chambers' hands. Does

23 the Court have a thought as to when it wants a submission by the parties

24 to be made?

25 JUDGE ORIE: Yes, I think we asked for submissions, of course if

Page 2680

1 the parties discuss the matter first, there's nothing against that, but

2 not -- the submissions, we would like to receive them not later than this

3 Friday. This gives you a bit of time to further discuss the matter, and

4 since in the first round this is not a promise that there will be any

5 second round, but at least the submissions now to be made can be

6 sequential. That means that if the Prosecution has made its submissions

7 by this Friday, that the Defence will have until after the weekend. So

8 you could work on it already, but it will be sequential. This is, again,

9 also not a promise that if there will be a next round that it will be

10 sequential again. That is one.

11 Then ...

12 [Trial Chamber confers]

13 [Trial Chamber and legal officer confer]

14 JUDGE ORIE: The next issue is that the Chamber would like to

15 deliver its decision in relation to an oral -- an application for

16 protective measures for Witness 60.

17 The reasons for the Chamber's prior decision granting protective

18 measures for Witness 60 are the following. On the 30th of March, 2007 --

19 MR. EMMERSON: I do apologise for rising to my feet. It may be

20 that we are at cross-purposes, but Witness 60 on our list is a forensic

21 expert who's never had protective measures. I think there may be some --

22 JUDGE ORIE: Then there may be -- sometimes we have two

23 numberings --

24 MR. EMMERSON: Or three sometimes.

25 JUDGE ORIE: -- numbers appear -- and if these had been mixed up,

Page 2681

1 then I'll first verify that before I issue any decision.

2 MR. EMMERSON: Thank you.

3 JUDGE ORIE: I'll leave that then for the time being and it could

4 be dealt with -- would be the number of in accordance with the list of how

5 the witness would appear before this Court. Then--

6 MR. EMMERSON: Your Honour --


8 MR. EMMERSON: Whenever Your Honour has a moment, there are two

9 short procedural matters.

10 JUDGE ORIE: Yes, I have another. I'll give you an opportunity

11 to -- on the 23rd of March of this year the Chamber has requested the

12 Office of the Prosecution to provide information on the security situation

13 concerning witnesses in Kosovo and has requested the Defence to provide

14 the information it deems relevant. On the 24th of March the Chamber has

15 requested to be informed by the parties if no agreement on the matter

16 could be reached, because that was suggested that stipulations could be

17 made.

18 On the 28th of March, the Office of the Prosecution has sent a

19 letter to the Legal Officer with an annex listing materials relevant to

20 witness security in Kosovo. That means that there's no agreement

21 reached. And the Chamber would like to receive submissions as it

22 initially asked for to the parties.

23 Yes.

24 MR. EMMERSON: Can I formally and on the record indicate our

25 position as far as the Haradinaj Defence team is concerned.

Page 2682


2 MR. EMMERSON: Our position is that in respect to any witness

3 falling within the second category, that is to say a witness of whom there

4 is no evidence of threats, that if in respect of any such witness the

5 first two of the three criteria laid down in the Trial Chamber's ruling

6 are met, we will not oppose protective measures in those circumstances.

7 JUDGE ORIE: Okay. We'll consider that. But of course, then the

8 Chamber would also like to know, not necessarily immediately, whether the

9 other Defence teams would take a similar position. But perhaps you take

10 your time, read again what Mr. Emmerson said. It's always wise to read

11 his words again and then inform the Chamber.

12 MR. GUY-SMITH: My -- I think that's been my inclination also, but

13 I agree with you, it is always wise to read the words again.

14 JUDGE ORIE: Mr. Harvey, do you belong to the group of wise men

15 who start reading before talking?

16 MR. HARVEY: I shall take my cue from you, Your Honour, I think it

17 is a sensible precaution.

18 JUDGE ORIE: Okay. We'll hear then from you and see to what

19 extent -- that of course is the issue, to what extent this has any

20 influence on our request to be fed with further information on the matter.

21 MR. KEARNEY: Your Honours, is this to be a Friday submission as

22 well, this next submission that you're asking for?

23 JUDGE ORIE: Well, as a matter of fact, first we'll hear tomorrow

24 morning -- tomorrow in the afternoon, I take it from other Defence counsel

25 whether they take a similar position as Mr. Emmerson did. And after that,

Page 2683

1 the Chamber will indicate whether under those circumstances it would still

2 need in order to deal with further applications for protective measures.

3 Yes. Then these were the issues at this moment.

4 Then we could -- yes, Mr. Emmerson. Now --

5 MR. EMMERSON: Since we are -- we're dealing with procedural

6 issues at this stage, may I just mention two. The next witness to be

7 called in sequence is the witness who is planned to give evidence by

8 videolink on Wednesday. We received just a few moments ago a very, very

9 brief one-sided bullet-point notes arising from a proofing session that

10 took place on the 12th of March for an hour and a half or thereabouts.

11 And may I, through the Trial Chamber, or rather, on the record request a

12 fuller record of that briefing session, that proofing session than five or

13 six bullet-points for what was obviously a lengthy discussion in respect

14 of that witness.

15 Secondly, in terms of procedure, I'm not sure how much longer

16 Mr. Dutertre's likely to be with the present witness. Cross-examination

17 of this witness is likely to take a little time. One of the things that

18 I'm anxious about is not to create -- or for a situation not to arise

19 later in the week in which pressure is placed on the time that has been

20 set aside for Colonel Crosland's evidence. And he, as I understand it, is

21 available for two days. I've indicated some time ago in writing that he

22 is a witness who I would expect to, with the Trial Chamber's permission,

23 to be cross-examining for some considerable period of time. Now, we have

24 received from the Prosecution in respect of Colonel Crosland a Rule 92 ter

25 application in respect of a transcript of his evidence as --

Page 2684


2 MR. EMMERSON: -- as given in the Limaj trial. But we've also

3 received notification that the Prosecution intends to serve upon the

4 Defence a 92 ter statement in respect of that witness, and that,

5 presumably, is a statement that emerges from the proofing session Mr. Re

6 conducted in London some weeks ago, and I have been requesting now for two

7 weeks or so copies of any proofing notes or statements to have arisen from

8 the session that took place with Colonel Crosland. I have received

9 nothing, and I'm anxious that priority be given to the provision to the

10 Defence of the 92 ter statement, the motion, and the proofing notes so

11 that this is -- witness can be properly prepared. But I'm also anxious

12 that we don't find ourselves in a situation that -- given that we have to

13 do a videolink on Wednesday, that there may be pressure put on Colonel

14 Crosland's evidence.


16 Who's going to answer?

17 MR. KEARNEY: Your Honour, I will. I find myself at a somewhat of

18 a disadvantage. Neither one of these witnesses, Colonel Crosland or the

19 videolink witness belong to Mr. Dutertre or myself. As soon as court

20 breaks this evening, I will talk to both Mr. Re and Mr. Di Fazio about

21 both the issues that Mr. Emmerson has raised and we will contact the

22 Defence informally before court tomorrow and try and work these matters

23 out.

24 JUDGE ORIE: Yes. And if there are any major problems of which

25 the parties would think it would be advantageous the Chamber to be aware

Page 2685

1 of it, then the Judges of the Chamber are tomorrow morning in as well.

2 MR. KEARNEY: Thank you, Your Honour.

3 JUDGE ORIE: Then the first request, Mr. Emmerson, is clearly on

4 the record. I don't think that we have to spend much time on it at this

5 very moment.

6 We'll then move again into private session under the

7 circumstances.

8 Mr. Dutertre, could you inform us about how much time you'd still

9 need.

10 MR. DUTERTRE: [Interpretation] Rather difficult to say, Your

11 Honour. I am trying to adapt myself to what the Defence has requested,

12 which is why I had added some photos that I hadn't selected to begin with,

13 and obviously it will take some time to show each of them. But I would

14 say that I need roughly another hour with this witness.

15 JUDGE ORIE: Mr. --

16 MR. DUTERTRE: [Interpretation] This being said --

17 JUDGE ORIE: Yes. Mr. Dutertre, the witness was scheduled for one

18 hour and a half; we've spent now three hours. And even if there were

19 quite a lot of suggestions made to speed up, and that of course in itself

20 takes some time as well, you certainly couldn't say that that was one hour

21 and a half. I mean, if we have to say -- yes.

22 MR. DUTERTRE: [Interpretation] Your Honour, unless I'm mistaken,

23 according to the timetable I have before me, it was foreseen that three

24 and a half hours be granted for this witness. This is on line -- yes,

25 there's confusion with the numbering -- 21. But from the left-hand

Page 2686

1 column, the far left, there's a number 24 which corresponds to Witness 21,

2 and that gives us three and a half hours.

3 JUDGE ORIE: I'll have to check in the preparation. For this

4 session we had, at least in my preparatory work - and I do not always take

5 all the sources with me - but it says estimated time for

6 examination-in-chief: One hour and a half. But we'll check whether

7 there's any -- any mistake there. If so, then of course I apologise for

8 making you nervous.

9 [Trial Chamber and registrar confer]

10 JUDGE ORIE: Yes. Madam Registrar just gives me now the list

11 filed on the 2nd of March which indicates for Witness 21 three and a half

12 hours. So to the extent that I made a mistake there, I hope you'll accept

13 my apologies then, Mr. Dutertre.

14 Let the witness -- yes. I think we are not yet in private

15 session. We should turn into private session now.

16 [Private session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2687











11 Pages 2687-2696 redacted. Private session.















Page 2697

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 --- Whereupon the hearing adjourned at 7.00 p.m.,

19 to be reconvened on Tuesday, the 17th day of

20 April, 2007, at 2.15 p.m.