Page 2698
1 Tuesday, 17 April 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.24 p.m.
6 JUDGE ORIE: 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 I have to apologise. I had forgotten yesterday to return into
11 open session before adjourning, so that is -- now the adjournment is in
12 private session and it should not be that.
13 Nevertheless, we'll return now into private session because
14 experience has shown us that too easily identifying elements slip into the
15 testimony, and for that reason we still could consider at a later stage
16 what portions of the testimony could be in open session if there's no
17 identifying element in it. But for the time being, we return into private
18 session.
19 [Private session]
20 (redacted)
21 (redacted)
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1 (redacted)
2 [Open session]
3 THE REGISTRAR: Your Honours, we're back in open session.
4 JUDGE ORIE: Yes.
5 Mr. Emmerson, the issue you raised about technical problems in
6 revisiting exhibits, one was not uploaded yet because that was the
7 statement. It has been uploaded by now, as it's -- at least --
8 MR. EMMERSON: I'm sorry, you're sensing some hesitance on me.
9 The two exhibits, the numbers of which I gave to the court staff and on
10 the transcript earlier on, were not statements but photographs that the
11 witness marked and the transcript reflects those two exhibit numbers.
12 JUDGE ORIE: Yes, I should have listened better to you, yes.
13 Could you try to resolve this during break.
14 MR. EMMERSON: Yes, exactly.
15 JUDGE ORIE: If the assistance of the Chamber is needed, we'll
16 hear from Madam Registrar.
17 I'd like to use the remaining two minutes to deliver a decision on
18 protective measures for Witness 60 which is the number assigned to the
19 witness as his pseudonym. We usually refer to witnesses by number, apart
20 from the early March list. We have three types of numbers: First, number
21 on the witness list; the second is the sequence of appearing before this
22 court; and the third one is if a pseudonym is assigned, then we use that
23 number.
24 MR. EMMERSON: It may be entirely a lapse of memory on my part but
25 I don't know as I stand here who Your Honour is referring to. And it may
Page 2728
1 be that if we could just go into private session so that Your Honour could
2 indicate the name.
3 JUDGE ORIE: Yes.
4 MR. EMMERSON: Mr. Dixon has just passed it to me. I'm sorry. It
5 must have been a number that was assigned --
6 JUDGE ORIE: It was the last number, because we -- it was the last
7 pseudonym number we needed. I think we were till 59 and --
8 MR. EMMERSON: This was a witness that Mr. Dixon cross-examined?
9 JUDGE ORIE: Mr. Dixon, you would agree with that?
10 MR. DIXON: Yes.
11 MR. EMMERSON: Thank you.
12 JUDGE ORIE: Then I deliver that decision in relation to Witness
13 60, a decision has been --
14 [French on English channel]
15 JUDGE ORIE: I like the French language, but preferably on channel
16 5.
17 Then have the booths have the text of the decision? Yes. Then
18 these are the reasons for the Chamber's prior decision granting protective
19 measures for Witness 60.
20 On the 30th of March, 2007, the Prosecution filed its fifth motion
21 for trial-related protective measures. The requested measures for Witness
22 60 were face and voice distortion as well as the assignment of a
23 pseudonym. On the 2nd of April, 2007, the Defence responded that they did
24 not oppose the motion but requested that the Chamber acknowledge certain
25 facts in its decision. On the same day, the Chamber orally granted the
Page 2729
1 motion.
2 The party seeking protective measures for a witness must
3 demonstrate an objectively grounded risk to the security or welfare of the
4 witness or the witness's family, should it become known that the witness
5 has given evidence before the Tribunal. In the present case, the witness
6 lives outside of Kosovo. According to the Prosecution, an unknown person
7 approached the witness, asking about the content and the timing of the
8 witness's testimony in The Hague. In addition, the witness provided a
9 factual basis, indicating that at various time he was followed around.
10 The witness has expressed concerns for the safety of the witness and the
11 witness's family.
12 The Chamber accepts that the incidents described by the witness
13 may be interpreted as threats against the witness. The Chamber therefore
14 finds that there is a risk that if the identity of the witness were to be
15 made public, physical harm might result to the witness or the witness's
16 family. The Chamber makes no assumptions about the affiliations of the
17 person or persons behind the perceived threats.
18 This concludes the reasons for the Trial Chamber's decision on
19 protective measures for Witness 60.
20 Yes.
21 MR. EMMERSON: Just very briefly while we're on the subject of
22 protective measures, I had the opportunity to have a discussion with
23 Mr. Re this morning about the proposed position of the Defence in -- I'm
24 sorry.
25 JUDGE ORIE: Yes.
Page 2730
1 MR. EMMERSON: I see Judge Hoepfel.
2 [Trial Chamber confers]
3 MR. EMMERSON: Yes, I'm sorry. I should have made myself clear.
4 I meant in respect of the issue that Judge Orie raised yesterday evening
5 concerning the third of the criteria to be applied and the question of the
6 general security situation in Kosovo. The matter is under active
7 consideration within the Prosecution's department; in other words, whether
8 or not an agreed position can be presented for the Trial Chamber's
9 consideration, of course, and it's expected that Mr. Re will be in a
10 position to revert to me, he hopes, tomorrow in respect of that matter.
11 JUDGE ORIE: Yes.
12 So may I then take it that the matter that at least the Chamber
13 will receive it in one or two days --
14 MR. EMMERSON: Yes.
15 JUDGE ORIE: -- any indication of an agreement and then the Chamber
16 will consider what to do with it.
17 And Mr. Emmerson, since you're on your feet, how much time would
18 you need for the cross-examination of Witness 21?
19 MR. EMMERSON: It's a little difficult to estimate. I shall be
20 some time with him. I would have thought about two hours, but it could
21 trickle into longer than that.
22 JUDGE ORIE: Other counsel?
23 MR. GUY-SMITH: I, too, could be some time with him.
24 JUDGE ORIE: And --
25 MR. GUY-SMITH: Part of it is depending on what areas Mr. Emmerson
Page 2731
1 covers.
2 JUDGE ORIE: Yes.
3 MR. GUY-SMITH: I contemplate at least half an hour, and probably
4 more.
5 JUDGE ORIE: Yes.
6 Mr. Harvey.
7 MR. HARVEY: My cross-examination of this witness will not exceed
8 my cross-examination of the previous witnesses.
9 JUDGE ORIE: Yes, thank you.
10 We have all together approximately three hours left. The Chamber
11 would like to finish with the witness today, for all kind of practical
12 reasons, both our problem for tomorrow is a videolink; the problem for the
13 day after that is a witness which is not easy to move from one day to
14 another, as we experienced. So therefore, the Defence is encouraged to do
15 what it always does, that is, to as efficiently cross-examine the witness
16 so that there would be some time left for re-examination if there are any
17 questions --
18 MR. EMMERSON: Can I give Your Honour just a little bit of
19 comfort.
20 JUDGE ORIE: Yes.
21 MR. EMMERSON: There is only one witness listed for tomorrow.
22 That is the witness who will be giving evidence by videolink. The compass
23 of his examination-in-chief is not long. You've seen the length of the
24 proofing notes and -- reduced as they were to a few bullet-points.
25 Cross-examination will not be lengthy, either, in respect of that witness,
Page 2732
1 so far as we are concerned. In other words, the point that I'm making in
2 sum is it's most unlikely that that witness will take up a whole day, and
3 so we are very likely to have some spare time tomorrow without there being
4 any danger of impinging on the evidence -- so if cross-examination of this
5 witness takes longer than anticipated, which is sometimes a question of
6 how the answers come rather than the questions.
7 JUDGE ORIE: Yes, I do understand.
8 Mr. Kearney, I saw you nodding in the affirmative. Could you give
9 us any indication as to tomorrow's witness through videolink, how much
10 time that would presumably take.
11 MR. KEARNEY: Your Honours, I spoke with Mr. Di Fazio today, just
12 this morning, about his intent for the direct examination. While I don't
13 want to hold him to this, he expected it to be no more than an hour, an
14 hour and a half. I assume that allows Defence enough time.
15 Also, Your Honours, Mr. Emmerson mentioned the proofing notes for
16 this witness. Has the Chamber received them? Because we've been waiting
17 for word.
18 JUDGE ORIE: As a matter of fact, yesterday I think the complaint
19 was that they were too short, so now to refer to how short they are,
20 Mr. Emmerson, might not be the -- we have -- as far as I am aware of, we
21 have not received neither the original nor the revised --
22 MR. EMMERSON: The complaint yesterday was they looked short for a
23 lengthy -- an apparently lengthy proofing session. I made inquiries of
24 the Prosecution arising out of the matter I raised on the transcript, and
25 the answer I got back was they are the totality of any proofing notes,
Page 2733
1 which is why I made the comment that I did. And we can certainly discuss
2 with the Prosecution at the moment the provision of the proofing notes in
3 the adjournment that comes immediately so that they can be provided to the
4 Trial Chamber.
5 JUDGE ORIE: Yes, thank you.
6 Mr. Guy-Smith, I saw that you were on your feet.
7 MR. GUY-SMITH: Yes, I was. I had only risen to also confirm with
8 regard to the next witness, I believe that my examination of that witness
9 will be quite limited, if at all.
10 JUDGE ORIE: Yes.
11 Mr. Harvey.
12 MR. HARVEY: I can also re-assure the Court on that score.
13 JUDGE ORIE: Yes. You have a good reputation.
14 MR. HARVEY: The day will come.
15 JUDGE ORIE: And we'll have a break and we'll resume at quarter
16 past 4.00.
17 --- Recess taken at 3.53 p.m.
18 --- On resuming at 4.18 p.m.
19 MR. EMMERSON: Your Honour, can I start by clarifying the position
20 as far as those two exhibits are concerned?
21 JUDGE ORIE: Yes.
22 MR. EMMERSON: Just for the record. Exhibit P43 was a copy of the
23 aerial -- a copy of the photograph on which the witness marked certain
24 positions. That photograph was not, I think, in the system yesterday but
25 is now uploaded; that problem is resolved.
Page 2734
1 JUDGE ORIE: Yes.
2 MR. EMMERSON: P44 was another photograph that was put to the
3 witness during the course of his examination-in-chief, and in its original
4 form it was a photograph with no markings. He put two sets of markings on
5 it: B to show where the concrete section of the canal gave way to the
6 natural section of the canal and -- I'm sorry -- A to show where the
7 concrete section of the canal gave way to the natural section of the
8 canal; and B to show the location of the two floating bodies he saw on the
9 first occasion that he attended.
10 The position is simply a technical one. Yesterday it was saved
11 with only A on it. So P44, as saved yesterday, did not have the marking B
12 that appears on that screen. We managed to retrieve during the break the
13 correct version, and so it is now -- P44 has been replaced with one that
14 has both of the markings that the witness put upon it. So that is in fact
15 P44 as exhibited, even though the photograph that was in the system before
16 then lacked C -- lacked position B. Have I made myself --
17 JUDGE ORIE: Yes, I think so. The matter has been resolved?
18 MR. EMMERSON: Yes, it's been resolved.
19 [The witness takes the stand]
20 JUDGE ORIE: Fortunately.
21 MR. EMMERSON: But I simply wanted to put it formally on the
22 record, because the integrity of the exhibits is an issue. We substituted
23 this photograph for what was P44 because that was erroneously saved.
24 JUDGE ORIE: Yes.
25 Witness 21, you'll now be cross-examined by counsel for the
Page 2735
1 Defence.
2 And may I take it, Mr. Emmerson, that you'll be the first one?
3 MR. EMMERSON: Your Honour, yes.
4 JUDGE ORIE: One second, please.
5 [Trial Chamber and registrar confer]
6 JUDGE ORIE: Mr. Emmerson, we are in open session. I ask your --
7 if it would -- if you could proceed in open session without taking any
8 risk, no problem with that, because larger portions of the evidence as
9 elicited in the final phases of the examination-in-chief are suitable for
10 open court as well. But if you would feel more free --
11 MR. EMMERSON: I cannot commence my cross-examination in the order
12 in which I had planned it without trespassing on material that needs to be
13 given initially in private session.
14 JUDGE ORIE: Then we turn to private session, and I leave it to
15 you, Mr. Emmerson, to apply for open session.
16 [Private session]
17 (redacted)
18 (redacted)
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15 [Open session]
16 THE REGISTRAR: Your Honours, we're back in open session.
17 JUDGE ORIE: Yes.
18 Mr. Emmerson, if you would please look at page 71, line 20 or 19
19 and 20, where the witness said: "Excuse me for a second, if this is a
20 road from Baballoq and then from the main road to Gjakove and if you take
21 a right," there might be confusion there --
22 MR. EMMERSON: Yes, but --
23 JUDGE ORIE: -- especially where Gjakove is mentioned, which --
24 MR. EMMERSON: That was the moment at which I noticed the mouse
25 arrow sitting on the road to Shaptej, and I wasn't sure whether -- when
Page 2771
1 he's saying if this is the road whether he's referring to the road that
2 the mouse arrow was sitting on, which is why I asked that we remove it,
3 and I effectively wanted to start again, so I'm going to seek, if I may,
4 just to clarify that with him. I appreciate -- this is -- and I'm sorry
5 this -- if I may say so, that this examination -- this cross-examination
6 is proceeding so slowly. I've got material to deal with, but it is rather
7 important to get some of these details correct.
8 JUDGE ORIE: At the same time whether it's time or geography,
9 there might come a certain moment where we have to accept that the witness
10 has limitations --
11 MR. EMMERSON: Absolutely.
12 JUDGE ORIE: -- in his orientation in time and--
13 MR. EMMERSON: Absolutely.
14 JUDGE ORIE: Mr. Guy-Smith.
15 MR. GUY-SMITH: Because I know the Chamber has some concern about
16 time, I can assure the Chamber that my cross-examination will now be more
17 limited than I expected to, based upon the questions that have been asked,
18 because Mr. Emmerson is in fact covering one of the critical aspects that
19 I was intending on dealing with.
20 JUDGE ORIE: Yes.
21 I have a few matters. First of all, the statement by mistake has
22 not received a number yet, yesterday. That's the consolidated statement.
23 Madam --
24 [Trial Chamber and registrar confer]
25 JUDGE ORIE: I'm making a mistake. The other statement referred
Page 2772
1 to in relation to the 26th or the 28th with the translation issue in it,
2 do you intend to tender that into evidence? I would, under those
3 circumstances, prefer that if it would be tendered that we would have an
4 original with a translation which is perfect.
5 MR. EMMERSON: I'm not going to tender it at this stage because it
6 seems to me that there are issues that need to be clarified in relation to
7 it.
8 JUDGE ORIE: So we'll leave that?
9 MR. EMMERSON: Yes. Can I -- Your Honour mentioned a moment
10 ago --
11 JUDGE ORIE: At the same time, same question for this photograph.
12 As a matter of fact, I earlier asked this photograph to be shown on the
13 screen, but it has never been --
14 MR. EMMERSON: Yes.
15 JUDGE ORIE: -- presented as evidence, although it certainly is
16 clearer than the other one that is in evidence.
17 MR. EMMERSON: I'll ask for this to be marked for identification
18 in open session and then exhibited.
19 JUDGE ORIE: Yes. I think we are in open session at this moment,
20 so Madam Registrar could you already attribute a number to this photograph
21 which is ...?
22 THE REGISTRAR: Your Honours, this will be Exhibit Number D35,
23 marked for identification.
24 JUDGE ORIE: Thank you, Madam Registrar.
25 Mr. Emmerson.
Page 2773
1 MR. EMMERSON: The other exhibit that Your Honour mentioned a
2 moment ago, the consolidated witness statement, I think we're all clear
3 that was given an exhibit number marked under seal, but since we're in the
4 absence of the witness, the passage that I was dealing with which
5 Mr. Dutertre took objection to is in paragraph 40, and I'll just read it
6 to Your Honours. It's the fourth line down.
7 JUDGE ORIE: Yes.
8 MR. EMMERSON: Yes, I'm sorry, I notice we're in open session, so
9 in fact it perhaps ought to be done in closed session or --
10 JUDGE ORIE: Yes, or you --
11 MR. EMMERSON: Or Your Honour -- well, yes, there is another
12 matter I just need to mention so perhaps we could just go back into open
13 session --
14 JUDGE ORIE: Yes, we return to private session.
15 [Private session]
16 (redacted)
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20 [Open session]
21 JUDGE ORIE: We are in open session at this very moment, that is
22 to correct myself. The announcement that in my absence the two other
23 Judges have decided to continue to hear the case on Thursday was
24 pronounced in private session, where it should have been done in open
25 session. That's hereby corrected, and we now return into private session
Page 2777
1 in order to continue the cross-examination of Witness 21.
2 [Private session]
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12 [Open session]
13 THE REGISTRAR: Your Honours, we're back in open session.
14 JUDGE ORIE: Yes.
15 As the parties know, we had identified a few Fridays where we
16 would not be sitting, among them the 18th of May, 25th of May, 8th of
17 June. You'll not find them on any managerial instrument anymore; at the
18 same time, the Court said that if need would be that we would use portions
19 of those Fridays. This means that for organisational reasons you do not
20 see them anymore. If need be, we'll find ad hoc solutions, so it should
21 not be misunderstood that if you find all this completely cancelled it
22 means that there would be no interpreters hired, there would be no
23 technical staff hired. If need be, we will see whether we can find ad hoc
24 solutions for that.
25 [Trial Chamber and registrar confer]
Page 2798
1 JUDGE ORIE: That having been clarified, we will adjourn until
2 tomorrow, quarter past 2.00, same courtroom.
3 --- Whereupon the hearing adjourned at 7.06 p.m.,
4 to be reconvened on Wednesday, the 18th day of
5 April, 2007, at 2.15 p.m.
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