Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4521

1 Tuesday, 22 May 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.14 a.m.

5 JUDGE ORIE: Good morning to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, 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 would like to start this morning, this morning which we'll deal

11 with a lot of outstanding procedural matters, with first of all to deliver

12 the Chamber's reasons for the protective measures which were granted for

13 Witness 61.

14 These are the reasons for the Chamber's earlier decision granting

15 protective measures for Witness 61.

16 I'd like to go into private session for a small portion of the

17 decision.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 4522

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: Your Honours, we're back in open session.

8 JUDGE ORIE: The party seeking protective measures for a witness

9 must demonstrate an objectively grounded risk to the security or welfare

10 of the witness or the witness's family, should it become known that the

11 witness has given evidence before the Tribunal. However, where an

12 application for protective measures concerns a sexual assault victim, a

13 long line of authority provides that the identity of such a victim will be

14 protected based on considerations of privacy, if that victim so requests

15 even in the absence of any concerns about the witness's security.

16 In the present case, Witness 61 testified about being the victim

17 of rape. The Chamber, therefore, granted the requested protective

18 measures on the basis of the special consideration applied to persons

19 testifying about their personal experience of sexual violence.

20 This concludes the reasons for the Trial Chamber's decision on

21 protective measures for Witness 61.

22 The next decision to be delivered is this Chamber's decision on

23 the Prosecution's motion seeking an amendment to Idriz Balaj's pre-trial

24 brief.

25 During cross-examination of Witness 19 on the 16th of March, 2007,

Page 4523

1 counsel for Idriz Balaj asked about a murder committed by a relative of

2 the witness many years prior to the indictment period. Counsel suggested

3 that what later happened to this relative during the indictment period

4 might have been the result of a personal revenge or blood feud for this

5 murder. The Prosecution objected to the questioning as not having a

6 sufficient basis and being irrelevant. The Chamber overruled the

7 objection.

8 On the 30th of March, 2007, the Prosecution filed a motion seeking

9 an amendment to Idriz Balaj's pre-trial brief. The Prosecution argued

10 that the fact that the reference to blood feud was made for the first time

11 during the cross-examination of Witness 19 and not mentioned in the

12 pre-trial brief constituted a breach of Rule 65 ter (F). In the

13 Prosecution's understanding, Balaj intended to use the same defence in

14 cross-examination of other witnesses as well. The Prosecution argued that

15 by not being informed in general terms that the issue of a blood feud

16 would be raised in cross-examination, nor about the witnesses with whom

17 this issue would be raised, the Prosecution could not "adequately prepare

18 these witnesses."

19 The Defence for all three accused responded that Rule 65 ter (F)

20 did not require an accused to set out his or her defence in such detail as

21 the Prosecution suggested and that Idriz Balaj's pre-trial brief,

22 therefore, was in full compliance with the rule.

23 Rule 65 ter (F) states that the pre-trial brief of the Defence

24 should set out the nature of the accused's defence "in general terms." It

25 should also set out the matters with which the accused takes issue in the

Page 4524

1 Prosecutor's pre-trial brief and the reason why the accused takes issue

2 with it.

3 The Chamber considers that the Prosecution has given no foundation

4 for its statement that Idriz Balaj intends to use "the defence of blood

5 feud" in the cross-examination of other witnesses. The Prosecution has

6 merely shown that it constituted only one among several lines of

7 cross-examination in relation to Witness 19. The blood feud issue has

8 been raised in cross-examination just once since Witness 19 by counsel for

9 Ramush Haradinaj.

10 For those, for the parties interested, I refer to transcript pages

11 3783 to 3785.

12 I continue with the decision. Again, the role of this line of

13 cross-examination was peripheral. Rule 65 ter (F) does not require that

14 the Defence describe the specific lines of questioning it intends to use

15 during cross-examination for each Prosecution witness. Consequently, the

16 Chamber does not consider that the pre-trial brief of Idriz Balaj breaches

17 the mentioned rule.

18 And for these reasons, the Prosecution's motion is denied. This

19 concludes the Chamber's decision.

20 The next decision to be delivered is a decision on the first batch

21 of Prosecution's Rule 92 bis and Rule 92 ter motions.

22 This is a decision on the first batch of Rule 92 bis and 92 ter

23 requests by the Prosecution. The original motion was filed on the 19th of

24 February, 2007, and amended on the 7th of May, 2007. The Defence

25 responded to the original motion on the 1st and the 5th of March, 2007,

Page 4525

1 and to the amended motion on the 21st and 22nd of May, 2007. The

2 Chamber's decision covers the material shown in the form that has already

3 been distributed to the parties.

4 As you will see in the first table appearing in that form, the

5 evidence of three witnesses is being admitted according to Rule 92 bis

6 without cross-examination. Among these three witnesses is one witness

7 whose evidence is only provisionally admitted pending formal attestations.

8 The Chamber has given full consideration to the arguments of the

9 parties, including the Defence's request that the decision be delayed

10 until the Chamber is in a position to determine the alleged cumulative

11 nature of the evidence, where this is applicable.

12 The other three witnesses shown in table 2 of the form you have

13 are being called to appear before the Chamber, and the decision on the

14 admission of their evidence will only be taken on the day they appear in

15 court.

16 The Chamber reminds the Prosecution that the evidence admitted

17 pursuant to Rule 92 bis is public unless a request for protective measures

18 has been received and granted. Until the Prosecution is in a position to

19 affirm that the persons referred to in the first table of the form do not

20 require protective measures, the Chamber will provisionally admit this

21 evidence under seal. The Prosecution is given seven days to inform the

22 Chamber about the security and safety status of these witnesses.

23 Lastly, the Chamber requests the Prosecution to upload the

24 documents shown in the form into e-court, and the registrar to assign

25 exhibit numbers to the in the form and to inform the parties of the

Page 4526

1 exhibit numbers so assigned.

2 This concludes the Chamber's decision on the first batch of 92 bis

3 and 92 ter witnesses. The form will be filed confidentially so that we

4 have clearly on the record what is admitted and what is not admitted.

5 Mr. Re.

6 MR. RE: Just one very short follow-up matter. In table 2, it's

7 an update for the Court and for the Defence, the first witness, Witness

8 number 20, the Prosecution is unsure whether the witness will be able to

9 testify. He was extremely ill when we last attempted to contact him last

10 month, and we are attempting to make further inquiries today. It may well

11 be there's an application under 92 quater.

12 JUDGE ORIE: Yes. Of course, if circumstances are changing, first

13 of all, there's no evidence in table 2 that by this decision has been

14 admitted already. It is, rather, to say that the material is suitable as

15 such to be admitted under Rule 92 ter; but, of course, it is at the moment

16 where the witness attests that the statement reflects what he said at the

17 time and that he would give the same answers if questioned about it now,

18 it's only at that moment that the Chamber could decide to admit these

19 statements into evidence. So, therefore, if circumstances change, Mr. Re,

20 the Chamber expects you to file further submissions and further

21 applications for other rules in, let me say, the 92 environment.

22 Next item on the agenda is a request for clarification of the

23 OTP's corrigendum to Rule 92 bis motion of the 27th of March, 2007.

24 On the 17th of May, of this year, the Prosecution filed a

25 corrigendum to the Rule 92 bis motion of the 27th of March, 2007. The

Page 4527

1 motion and corrigendum concerns three witnesses, two of which are or have

2 been investigators of the Office of the Prosecutor. With these two

3 witnesses, the Prosecution seeks to introduce statements not only of the

4 investigators themselves but of eight persons who are or will be witnesses

5 in this case.

6 The investigators cannot, at least that's what the Chamber

7 considers at this moment, cannot possibly attest that the witness

8 statements are true and correct and accurately reflect what the witness

9 would say if examined in court. The Chamber, therefore, asks the

10 Prosecution to clarify which portions of these witness statements it would

11 like to have admitted under Rule 92 bis.

12 MR. RE: It's essentially those portions which we've set out in

13 the annex of the motion which the 17th of May was corrigendum to, which

14 was the motion of the 27th of March. In the annex, we've set out the

15 paragraphs of the witness's statement which we wish to annex to the

16 investigator's statement.

17 JUDGE ORIE: I haven't got the original motion with me at this

18 time. The Chamber will have a look at it and see whether that

19 sufficiently clarifies the issue. Therefore, we'll deal with it, Mr. Re,

20 most likely after the first break to see whether that has clarified the

21 issue. The Defence has also now an opportunity to see whether that

22 satisfies their needs and would meet any possible concerns.

23 Then I'd like to move to exhibits. First of all, I'd like to deal

24 with what could be called the Andjelkovic exhibits. This witness has

25 testified on the 6th and the 7th of March; and on the 8th of March, the

Page 4528

1 Trial Chamber stated that the Prosecution had to re-organise the exhibits

2 first before any decision on admission into evidence could be taken. On

3 the 23rd of March, the Office of the Prosecutor said it would re-organise

4 the exhibits by the 27th of March. The Trial Chamber did not receive at

5 that time anything. On the 28th of March, the OTP promised to arrange it

6 on the same day. Again, the Trial Chamber did not receive anything at

7 that moment; but on the 29th of March, the Legal Officer sent an e-mail to

8 Mr. Smith requesting an update.

9 On the 2nd of April, Mr. Re did send a letter to the Legal Officer

10 containing the re-organised exhibits; then on the 5th of April,

11 Mr. Emmerson indicated that there was still issues with the re-organised

12 exhibits, and the Trial Chamber encouraged further contact between the

13 parties to resolve the matter, short of which the Trial Chamber would have

14 to rule upon it.

15 On the 18th of April, Mr. Re, you sent a letter to the Legal

16 Officer of the Chamber proposing to tender into evidence recorded diaries

17 of Andjelkovic, as indicated there in detail. On the 23rd of April, 2007,

18 the Trial Chamber requested the parties to inform the Trial Chamber, as I

19 then said, relatively soon whether they have come to a solution. On the

20 10th of May, I've asked you, Mr. Re, to provide by the 16th of May an

21 agreed list of Andjelkovic exhibits.

22 On the 17th of May, an e-mail was sent by Mr. Re to the Legal

23 Officer, indicating that the Defence does not oppose the OTP's tendering

24 of 65 ter 1341 and 65 ter document 1340 and that the OTP does not oppose

25 P3 and P4 being admitted into evidence or having portions of volume 4 of

Page 4529

1 Ms. Andjelkovic's diaries marked for identification.

2 Now, there has been a lively exchange of e-mails since then. On

3 the 21st of May, Mr. Willemsen has sent an e-mail to Mr. Zahar, and,

4 finally, I think we could summarize the situation at present as follows.

5 Volume 1 of the notebooks, that is 92 pages, plus translation,

6 that's 39 pages, has been uploaded now as 65 ter Exhibit 1341 and is

7 awaiting the assignment of an exhibit number and admission. If the

8 parties would agree with that, I would first of all invite Madam Registrar

9 to assign an exhibit number, to the extent it's not done yet, to 65 ter

10 1341.

11 THE REGISTRAR: Your Honours, this will be Exhibit Number P321.

12 JUDGE ORIE: 321.

13 Are there any objections against the admission of P321?

14 MR. EMMERSON: Your Honour, no. May I remind the Trial Chamber

15 and the parties that I raised on a previous occasion the question of

16 whether any of these documents may contain material relevant to protected

17 witnesses, and the Prosecution were invited to review the material to

18 clarify that that was the position before a decision was taken as to

19 whether they were to be admitted under seal or not.

20 JUDGE ORIE: Mr. Re.

21 MR. RE: We haven't quite finished with the B/C/S portion. The

22 English is okay, I think. Could they be admitted just under seal for the

23 moment, and we can certainly inform you probably later in the week.

24 JUDGE ORIE: Seven days, just as we gave seven days for review of

25 one of the 92 bis statements in one of the previous decisions, seven days,

Page 4530

1 would that do?

2 MR. RE: Yes, Your Honour.

3 JUDGE ORIE: Then P321 is admitted into evidence, provisionally

4 under seal, the Trial Chamber awaiting any further submissions by the

5 Prosecution on the need to keep protective measures in place in relation

6 to that material.

7 Then I move to volume 2 of the notebooks, which is 79 pages, plus

8 the translation, 42 pages; volume 2 having been uploaded as 65 ter 1340.

9 Madam Registrar, an exhibit number to 65 ter 1340 would be?

10 THE REGISTRAR: Your Honours, this will be Exhibit Number P322.

11 JUDGE ORIE: Any objection?

12 MR. EMMERSON: Your Honour, no objection. I'm reminded, and

13 perhaps for the record it ought to be clear, that the reason there is no

14 correlation between the volume of English translations and B/C/S original

15 is because the translations are selective translations, and it may be that

16 the record ought to show that.

17 JUDGE ORIE: Yes. That could then be done in the description of

18 the exhibit. I take it that would then be volume 2 of the notebook plus

19 selective translation.

20 MR. EMMERSON: The same comment, in fact, applies to volume 1.


22 Madam Registrar, your attention is drawn to specifically reflect

23 in the description of the exhibit that the translation is a selective

24 translation and not a full translation.

25 Mr. Re, have you checked on protective measures yet?

Page 4531

1 MR. RE: It's the same.

2 JUDGE ORIE: It's the same. Then the decision will be the same as

3 well; that is, P322 is admitted into evidence provisionally under seal,

4 the Chamber awaiting within the next seven days further submissions in

5 that respect from the Prosecution.

6 Then we have the wish by Mr. Haradinaj's and Mr. Balaj's counsel

7 to have P3 marked for identification; that is, 41 pages described as

8 second draft translation of P1, or to say it in full, P00001, admitted

9 into evidence. The same is the case for then only Mr. Haradinaj's

10 counsel, for P4 marked for identification, 42 pages, described as second

11 draft translation of P00002 to be admitted into evidence.

12 Are there any objections by the Prosecution?

13 MR. RE: None, Your Honour.

14 JUDGE ORIE: Then P3 and P4 are now admitted into evidence. The

15 status of P6; that is, "Spotlight" reports 26 and 27, are still open in

16 the scheme, or is it included in any other, Mr. Emmerson.

17 MR. EMMERSON: It's not included in any of the other exhibits and

18 it's tendered.

19 JUDGE ORIE: Yes. It's tendered by the Prosecution then.

20 Are there any objections against P6, that's "Spotlight" reports

21 26 and 27, to be admitted into evidence? I see nodding "no" three times,

22 that means that P00006 is admitted into evidence. Would that need,

23 Mr. Re, also a check on any protective measures?

24 MR. RE: No. It's a public document.

25 JUDGE ORIE: It's a public document.

Page 4532

1 Then we move on. Mr. Balaj's counsel has expressed his wish that

2 two pages from volume 4 of the notebooks, these are the pages 3 and 4,

3 used in the course of cross-examination of Witness 21 admitted into

4 evidence.

5 Any objections by the Prosecution?

6 MR. RE: No.

7 JUDGE ORIE: Then these two pages are part of 65 ter number 696,

8 which has not yet received an MFI number. Mr. Guy-Smith.

9 MR. GUY-SMITH: That is correct. Those two pages have been

10 uploaded as 2D23682 and 683 in the system.

11 JUDGE ORIE: Yes. So, therefore, they now have received a Defence

12 document number.

13 Madam Registrar, the number to be assigned to 2D23682 and last

14 three digits 683 would be together number?

15 THE REGISTRAR: Your Honours, this will be Exhibit Number D68.

16 JUDGE ORIE: And in the absence of any objection, it is admitted

17 into evidence.

18 Is there any other matter in relation to the Andjelkovic exhibits

19 that need to be addressed at this moment?

20 MR. EMMERSON: [Microphone not activated]

21 JUDGE ORIE: Yes, Mr. Emmerson.

22 MR. EMMERSON: Would Your Honour just give me one moment. I'm

23 looking at P5. Could we return to P5 a little later --


25 MR. EMMERSON: -- in the course of the morning.

Page 4533

1 JUDGE ORIE: P5, still to be considered.

2 Then the next matter relates to the exhibits introduced through

3 Witness Zyrapi. The Chamber wishes to deliver a decision covering most of

4 the Zyrapi documents and asking for further clarification in respect of

5 some others.

6 This is a decision on the documents marked for identification

7 relating to Witness Bislim Zyrapi. On the 10th of May, 2007, the

8 Prosecution asked for the admission into evidence of 140 documents shown

9 at various times to Witness Zyrapi. Mr. Haradinaj responded to the

10 Prosecution's motion on the 17th of May, 2007, and he is joined in his

11 response by Mr. Balaj and Mr. Brahimaj.

12 The Defence does not object to the admission of 99 documents with

13 exhibit numbers shown in paragraph 3 as well as in footnote 6 of

14 Mr. Haradinaj's response. The Defence explains that these 99 documents

15 bear a signature that the witness was able to recognise.

16 This being the position, the Chamber decides to admit the 99

17 documents into evidence.

18 And, Madam Registrar, you are directed to paragraph 3 and footnote

19 6 of the Defence response for the details.

20 Another 38 documents marked for identification in the bundle are

21 listed in paragraph 8 of the Defence's response. And in relation to these

22 38 documents, the Defence requests that a decision on their admission will

23 be deferred until further evidence is presented by the Prosecution in

24 respect of these documents. The Defence submits that these documents

25 cannot be said to possess sufficient indicia of reliability.

Page 4534

1 The dispute between the parties over these 38 documents will be

2 decided by the Chamber in a separate decision. In the meantime, the

3 Defence is invited to explain to the Chamber why it does not oppose the

4 admission of Exhibit P237, but yet opposes the admission of other

5 documents bearing apparently the same signature over the same name.

6 Of the 140 marked documents in question, three have not yet been

7 referred to.

8 The document marked P160 is, in fact, constituted of three

9 documents, only the first of which bears the signature of Mr. Haradinaj.

10 The Defence does not object to the admission of this first document, but

11 wishes to exclude the remainder. The Prosecution is instructed to reply

12 orally or in writing about why these three documents should be read

13 together, or to otherwise withdraw the two unsigned documents in order to

14 enable the first one to be admitted.

15 There is a similar problem with document marked P184. The Chamber

16 asks the Prosecution for clarification.

17 The Defence has identified a different problem with the document

18 marked 207, P207. I will not describe the exact problem here, since it is

19 quite convoluted, and it is accurately described by the Defence on page 5

20 of its response. The Prosecution is instructed to look into the problem

21 and revert to the Chamber orally or in writing.

22 The parties are given three days to respond to the Chamber on

23 these matters. And this concludes the Chamber's decision on the Zyrapi

24 exhibits.

25 I now move to the withdrawn Defence exhibits tendered by the

Page 4535

1 Prosecution; I am talking about D9, D10, D11, D13, and D22. The Chamber

2 has received a submission 22nd of May, 2007, by the Prosecution under the

3 title: "Prosecution's submission on the admission of portions of witness

4 statements put to Prosecution witnesses in cross-examination," in which

5 the Prosecution singles out D10 and D11 as not necessary to be admitted

6 into evidence and explains why D9, D13, and D22 should be admitted into

7 evidence.

8 Has the Defence had sufficient time to consider this application,

9 and could it express any objections against admission into evidence of

10 these documents, apart from whether that should be done under those

11 numbers?

12 MR. EMMERSON: I'm very much afraid to say by the time in the

13 preparation for today I turned to this document, I haven't had sufficient

14 time to give it mature consideration, but I will certainly be in a

15 position to do so at the very latest by tomorrow morning.

16 JUDGE ORIE: Tomorrow morning.

17 Mr. Guy-Smith.

18 MR. GUY-SMITH: Yes. I don't know what the Chamber's position is;

19 and if the Chamber is not of a mind to reject this matter out of hand,

20 then I was going to request time to file a written submission to that

21 pleading that we received late last night, if the Chamber deems that

22 necessary. I'm more than happy also to deal with it orally, if you want,

23 but it was my intent to file a written submission because I think it

24 raises a number of interrelated issues with regard to the way the

25 Prosecution believes evidence should be considered by the Chamber and how

Page 4536

1 they are proceeding to submit evidence to the Chamber.


3 Then for Mr. Brahimaj's Defence.

4 MR. TROOP: Good morning, Your Honour. This document came to our

5 attention this morning. We're certainly in a position, if necessary, to

6 respond orally tomorrow morning, though our preference would be to file a

7 written submission in response to the Prosecution's written submission.

8 We'd ask for seven days if possible.

9 JUDGE ORIE: As a matter of fact, it doesn't seem to be of such

10 urgency that we could not receive written submissions on the matter since

11 two Defence counsel have expressed their preference for written

12 submissions.

13 Mr. Re, would you oppose written submissions on the matter?

14 MR. RE: Certainly not.


16 Then how much time, Mr. Guy-Smith, you think you would need to

17 prepare such written submission?

18 MR. GUY-SMITH: I would suggest a week, if that's not too much.


20 And Defence for Brahimaj?

21 MR. TROOP: Yes, seven days, Your Honour.

22 JUDGE ORIE: Then one week is granted to make written submissions

23 on the admission of documents now tendered by the Office of the Prosecutor

24 and originally tendered under numbers D9, D13, and D22 by the Defence.

25 Then I move on.

Page 4537

1 Yes, Mr. Emmerson.

2 MR. EMMERSON: Just before Your Honour does, and perhaps in order

3 to keep things as close as possible to the planned order --


5 MR. EMMERSON: -- may I return to P5.


7 MR. EMMERSON: Having checked with those who sit beside and around

8 me, I think the position is that those documents have been tendered by the

9 Prosecution, but no decision has yet been made on admission in relation to

10 them.


12 MR. EMMERSON: So far as the Defence is concerned, we have no

13 objection to their admission.

14 JUDGE ORIE: Would that be true for you as well?

15 MR. GUY-SMITH: Yes, that is correct, Your Honour.

16 JUDGE ORIE: And for Mr. Brahimaj's Defence as well.

17 Then P5 is admitted into evidence. Yes. It's a similar position

18 as with P6, as a matter of fact.

19 Then I read from the transcript of the 17th of May where I said:

20 "The parties will be aware that the testimony of Colonel John Crosland

21 will resume next week, and the Chamber would like to ask the Defence

22 whether they object to the admission of, first, the documents accompanying

23 the transcript from the Limaj case; and second, whether they object to the

24 documents that the Prosecution tendered through the witness in its

25 examination-in-chief. And if there's an objection to the admission of any

Page 4538

1 of these documents, the Chamber would like to ask the Defence to specify

2 the documents to which they object on the coming Monday."

3 And I added to that that I earlier had asked the attention of the

4 Defence for the advantages of the Chamber being aware prior to the

5 continuation of the examination of Colonel Crosland of any such

6 objections. Therefore, you're invited, Mr. Emmerson, I see you're on your

7 feet, you first.

8 MR. EMMERSON: No objections.

9 JUDGE ORIE: No objections. Not on the Limaj, not on any of the

10 other.

11 MR. EMMERSON: Not on the Limaj transcript or the documents

12 admitted in Limaj pursuant to the transcript.


14 MR. EMMERSON: There is of course another category of material;

15 namely, those documents which the Defence have in the Defence

16 cross-examination bundle for Colonel Crosland which is separate from that.


18 MR. EMMERSON: And perhaps most conveniently could deferred until

19 the conclusion of his testimony.


21 Mr. Guy-Smith.

22 MR. GUY-SMITH: No objection on either count.

23 MR. TROOP: No objection, Your Honour.

24 JUDGE ORIE: Then we finally will decide on the admission at the

25 end as we always do, but it's on the record now that none of the exhibits

Page 4539

1 attached to the Limaj testimony nor any of the other exhibits which appear

2 on the list are objected or subject to objections at this moment.

3 Then looking at the list of exhibits, as I understand has been

4 distributed to the parties. I think we now dealt with the Andjelkovic

5 exhibits. We've now dealt with the Defence exhibits taken over by the

6 Prosecution or adopted by the Prosecution perhaps I better say. One of

7 the outstanding issues is P40. We have not -- no, let me just have a

8 look. P40 is a video-clip shown in the first testimony of Witness 08. We

9 will leave that until the Chamber has finally -- until we have dealt with

10 the issues related to Witness 8. By mistake, it appears on the list as

11 related to Witness 40; but that, of course, should be Witness 08. So we

12 leave that for the time being.

13 MR. EMMERSON: Your Honour will recall that on a previous occasion

14 I raised some concerns about the description of that document. It's not,

15 in fact, a record of the testimony at all --


17 MR. EMMERSON: -- and nor is it a record of a first account but an

18 interview with the witness in 2006.


20 Madam Registrar, so we take out first video-clip showing, could we

21 say, Witness 08 being interviewed in 2006. Madam Registrar, could you

22 please then correct the description in this way.

23 Then on the list we get then the long series that is approximately

24 two full pages of Crosland exhibits. We've dealt with that. Then we have

25 almost nine full pages of Zyrapi documents. We've dealt with them, not

Page 4540

1 with all of them in the final way, but we have dealt with them.

2 Then the next item on the list is D41, which is a video-clip,

3 which due to lack of time has not been shown to the Chamber.

4 MR. EMMERSON: Can I --


6 MR. EMMERSON: -- indicate, it is my intention to use the

7 video-clip in cross-examination of a witness who is due to testify later

8 this week.


10 MR. EMMERSON: One of the two witnesses who's coming later this

11 week.

12 JUDGE ORIE: So rather not spend time on it at this very moment --


14 JUDGE ORIE: -- but wait until a suitable moment to have the video

15 played.

16 MR. EMMERSON: Yes. There is an existence -- because it's not an

17 easy document to transcribe -- an easy film to transcribe. There is in

18 existence a summary description and transcription of portions, but there

19 is an outstanding request to the translation unit to prepare an official

20 summary of it.


22 Is the Prosecution aware of the summary description and

23 description of portions, and is there any dispute about that?

24 MR. EMMERSON: It was included in the bundle used in

25 cross-examination for Rrustem Tetaj.

Page 4541


2 Mr. Re, perhaps you look at that so that if later this week the

3 Defence suggests to look at the video, that we know whether there's any

4 objection as far as this material is concerned in the form -- in the

5 format as it is now because there is a possibility that a final

6 translation is not available by the end of this week.

7 MR. RE: I understand that, but it would certainly assist, and

8 probably the Trial Chamber as well, if perhaps the Defence could indicate

9 now whether the portions they wish to use in cross-examination have been

10 translated or whether they're referring to the entirety of the video.

11 JUDGE ORIE: Okay.

12 MR. EMMERSON: The portions that I intend to use in

13 cross-examination have a summary description and translation which is to

14 be found in the Rrustem Tetaj cross-examination bundle. An application is

15 outstanding to the translations unit to prepare a full translation of the

16 document -- of the video-clip; but when Your Honours see it, it will be

17 apparent that its significance lies more in the visual appearance than in

18 the language used, although where words are spoken they have been

19 translated and the official translation will be filed.

20 JUDGE ORIE: Yes. So we'll then see what happens there.

21 Then we have quite a number of documents marked for identification

22 which you will find in bold on the list. These are documents that were

23 used and were marked for identification.

24 [Trial Chamber and legal officer confer]

25 JUDGE ORIE: I do understand that you don't have them in bold.

Page 4542

1 I'm talking about D46, D45, D44, D43, D47, D48, D50, D51, D52, and D49.

2 I'm following the order in which they appear on the list. They were all

3 documents introduced through Witness 21. They have been used. They have

4 been marked for identification. May I take it that all of them are

5 tendered by the Defence?

6 MR. EMMERSON: They are all tendered, yes.

7 JUDGE ORIE: They are all tendered by the Defence.

8 Any objection, Mr. Re?

9 MR. RE: No, Your Honours, no.

10 JUDGE ORIE: Then the numbers I just read out are admitted into

11 evidence. Perhaps we still have to look more closely at the dates on

12 which they were used or tendered. The 10th of May could not -- I don't

13 remember that on the 10th of May it was specifically addressed, the

14 question whether they were tendered or not. We'll work together with

15 Madam Registrar on seeing whether these dates of use and tendering are

16 adequate.

17 MR. EMMERSON: Yes. Your Honour asked a little earlier on for the

18 Defence to provide to the Trial Chamber copies of the indices to the

19 cross-examination bundles with the MFI numbers inserted in the appropriate

20 column, once Madam Registrar had had an opportunity to assign such

21 numbers; and then at an appropriate moment for the record to show the

22 correlation between tab number and MFI number, so that those looking back

23 at the transcript will be able to see in an instance where, for example,

24 I've said: Can you please turn behind tab 6, what exactly tab 6

25 ultimately turns out to be. Now, we have provided to the Trial Chamber,

Page 4543

1 this morning, amended indices in respect of Witness 21, Bislim Zyrapi,

2 Witness 29, and Rrustem Tetaj, in each case showing the MFI number, either

3 as a P number or as a D number, and those documents will be available to

4 the Trial Chamber during the course of the morning.

5 JUDGE ORIE: Yes. We'll have a look at it, and it might be wise

6 to have them filed so that we have a good table so that it's easier to

7 understand.

8 MR. EMMERSON: I'm certainly in the position to -- the only

9 question is if they're going to be filed whether it remains necessary to

10 go through the process of reading them out on the transcript. It may be,

11 I don't know. It may be that it's unnecessary to do so if the documents

12 have been filed, and there's therefore already a record there.

13 JUDGE ORIE: Yes, we'll have a look at it.

14 Then we have three documents introduced through Witness 29, that's

15 D53 -- no, before I continue, are there any other documents that were not

16 yet read out by me in relation to Witness 21, of which admission is

17 sought?

18 MR. EMMERSON: [Microphone not activated]

19 [Defence counsel confer]

20 MR. EMMERSON: I'm sorry not to be able to answer that instantly,

21 but can I indicate that those that are in the index with now MFI numbers

22 attached are -- the list is: D31, D43, D44, D45, D46, D47, D48, D49, D50,

23 D51, and D52.

24 JUDGE ORIE: Yes. I notice that D -- no, D31 I think we --

25 MR. EMMERSON: D31 was introduced, initially, in the context of

Page 4544

1 the evidence of a different witness --


3 MR. EMMERSON: -- but then used in the cross-examination of

4 Witness 21 and, therefore, is in the bundle and in the index that will be

5 filed.

6 JUDGE ORIE: Yes. So D31 was admitted with that witness when it

7 was first introduced because all the other numbers you just read are

8 covered by the decision I delivered just a minute.

9 MR. EMMERSON: Thank you very much. Then the system's working.

10 JUDGE ORIE: Yes. Then as far as Witness D29 [sic] is concerned,

11 I've got at this moment on my list three documents marked for

12 identification. Do you have also three, Mr. Emmerson, or do you have

13 more?

14 MR. EMMERSON: In terms of marked for identification, there are

15 three: D53, D54, and D55 --


17 MR. EMMERSON: -- which were marked for identification. But may I

18 make it clear, it's not my intention to tender D53 or D54, but it is my

19 intention to tender D55.

20 JUDGE ORIE: Yes. And is that the only document in relation to

21 this witness you would like to tender or are there any more?

22 MR. EMMERSON: That's the only document in relation to this

23 witness that the Defence wishes to tender; but as before when the index is

24 provided to the Trial Chamber, it includes P documents --


Page 4545

1 MR. EMMERSON: -- that have already been tendered.

2 JUDGE ORIE: And decisions have already been taken in that respect

3 I think --

4 MR. EMMERSON: May I give you --

5 JUDGE ORIE: -- or were noted.

6 MR. EMMERSON: -- just a short list: It's P189, P193, P197, and

7 P199. Now, I think they will all be documents tendered --


9 MR. EMMERSON: -- by the Prosecution through Witness Bislim

10 Zyrapi.

11 JUDGE ORIE: Zyrapi. So this range is covered by the Zyrapi list.

12 Whether or not, I will have to check in your submission whether these were

13 admitted or not yet admitted, but at least it's clear that they're dealt

14 with Zyrapi.

15 MR. EMMERSON: We've done our level best to maintain a consistent

16 approach, and, therefore, I would be surprised and disappointed if I have

17 sought to tender a document or rely on a document which I have then

18 objected to in relation to Bislim Zyrapi.


20 MR. EMMERSON: It's not impossible, but it would have been a

21 failure of the system.

22 JUDGE ORIE: Mr. Re, therefore D55, UNMIK statement dated the 9th

23 of August, 2004, tendered through Witness 29, any objection?

24 MR. RE: Well, taken in isolation, no, but the Prosecution would

25 have a global submission on the three statements, which will be similar to

Page 4546

1 the submissions we filed this morning in relation to the other paragraphs

2 statements.


4 MR. RE: Would it be convenient for us to deal with those perhaps

5 by a short written submission?

6 JUDGE ORIE: Yes. That means that similarly, as you did in

7 relation to D9, D13, and D22, you make further submissions on the

8 admission into evidence but now tendered by the Prosecution of D53 and

9 D54. Is that correct? Yes.

10 MR. RE: That's correct, but I make it clear that D55 would be

11 included. The Defence, of course, cross-examined I think on all three.

12 JUDGE ORIE: Yes. I do understand. But irrespective of what the

13 outcome would be of such a submission concerning 53 and 54, that would not

14 in any way change your position as far as admission of D55 would be

15 concerned. Is that correct?

16 MR. RE: It may be when I consider the three together. It may

17 be -- our submission may well be it's one or all three or none of them.

18 JUDGE ORIE: Okay. Then we'll leave it open. The Prosecution

19 will make written submissions on the adoption of D53 and D54 as documents

20 to be tendered by the Prosecution, and in relation to that of any

21 objections against admission of D55.

22 Then I move on in relation to --

23 MR. EMMERSON: I'm sorry.


25 MR. EMMERSON: Just before Your Honour does, could Your Honour fix

Page 4547

1 a timetable in respect of that --


3 MR. EMMERSON: -- because there will have to be response from the

4 Defence as well.


6 Mr. Re, any suggestions?

7 MR. RE: Seven days?

8 JUDGE ORIE: Seven days. It will be busy next week.

9 MR. EMMERSON: May I ask for seven days thereafter, because the

10 position in respect to those three statements is relatively

11 straightforward, but nonetheless may require some explanation. The one

12 statement I am tendering is an inconsistent statement, as a previous

13 inconsistent statement, and is therefore in a different category from the

14 two OTP witness statements.

15 JUDGE ORIE: Yes. I take it Mr. Re will take that into

16 consideration when filing his submissions. Then one week is granted to

17 the Prosecution in relation to D53, 54, and D55. And already now a time

18 of another week is granted to the three Defence teams for a response to

19 those submissions.

20 Further responses I just mentioned need the approval of the

21 Chamber, not because I would expect here to receive many further

22 responses, but it has happened recently that without approval of the

23 Chamber further responses were filed. Just to remind the parties that

24 approval of the Chamber is needed under those circumstances.

25 Then we have exhibits in relation to Rrustem Tetaj. I've got five

Page 4548

1 on my list, and that's D56, D57, D58, D59, and D60. Are they tendered by

2 any of the Defence counsels?

3 MR. EMMERSON: D59 and D58 are tendered. I would like, if I may,

4 to reserve my position for a very short time in respect of D56 and D57.

5 D60 is tendered. Can I indicate as well that with the index that will be

6 provided to the Trial Chamber with appropriate cross-referencing, I'm not

7 certain that all documents appear.

8 JUDGE ORIE: Okay. Then perhaps it's better to ...

9 [Trial Chamber and registrar confer]

10 MR. EMMERSON: Can I revert to Your Honour just briefly.


12 MR. EMMERSON: Having had an opportunity to review the material,

13 the only exhibits tendered by the Defence in relation to the evidence of

14 Rrustem Tetaj, which do not appear on that list as yet, are tab 8 in the

15 cross-examination bundle, which is D39, and tab 18, which is D41. D41 is

16 the --

17 JUDGE ORIE: Video still to be played later this week.

18 MR. EMMERSON: Is the transcript, exactly.

19 JUDGE ORIE: Yes. So we'll deal with that --

20 MR. EMMERSON: Other than that --

21 JUDGE ORIE: -- soon.

22 MR. EMMERSON: I'm sorry. I'm sorry to speak across you. Other

23 than that, all of the items in the index with their appropriate

24 cross-referenced MFI numbers are either on this list or else they are P

25 documents tendered through Bislim Zyrapi.

Page 4549

1 I've just been handed a note indicating that tab 8, that is D39,

2 was not merely tendered but already exhibited. I don't know whether that

3 corresponds with Madam Registrar's record --

4 JUDGE ORIE: Madam Registrar, D39 --

5 MR. EMMERSON: -- which is why it doesn't appear on the list.

6 JUDGE ORIE: Yes. So D39 doesn't need attention at this moment.

7 D41, we'll finalise upon completion of translation and the video being

8 played later this week. And then the other documents, the other five,

9 Mr. Emmerson --

10 MR. EMMERSON: Are tendered.

11 JUDGE ORIE: -- are tendered, all of them including 56 and 57

12 where you said you'd --

13 MR. EMMERSON: No, I'm sorry. Subject to reserving my position in

14 respect to those two --


16 MR. EMMERSON: -- The other documents are tendered.

17 JUDGE ORIE: Then it might be that we find ourselves in a similar

18 position here that the Prosecution would like to consider the statements

19 in the context of -- is that true, Mr. Re? I'm now talking about D56,

20 D57, D58, and D59, which are all statements of which --

21 MR. EMMERSON: Can I remind Your Honour what they are?


23 MR. EMMERSON: D58 and 59 are two statements --

24 JUDGE ORIE: Of the same person.

25 MR. EMMERSON: -- of the same person; that is to say, the doctor .

Page 4550


2 MR. EMMERSON: -- who treated Skender Kuci in the field hospital

3 in Irzniq.


5 MR. EMMERSON: So they are both tendered together.


7 MR. EMMERSON: D56 and D57 are two statements of Gani Gjukaj, one

8 of the subzone commanders and relate to an investigation conducted by him

9 with the assistance of Mr. Haradinaj into the death of Sanije Balaj.

10 JUDGE ORIE: Mr. Re, could you express yourself already on D58 and

11 59, whether there's any objection?

12 MR. RE: Well, written submissions from the Defence as to the

13 basis of the admissibility would certainly assist. These are statements

14 taken by -- firstly, one by an OTP investigator; and secondly, the other

15 one to D60 to UNMIK officials at some point. Statements in this Trial

16 Chamber of the Tribunal are normally admitted if the witness isn't here

17 after an attestation under Rule 92 bis or Rule 92 ter. The witness is

18 here. At the moment, the Defence appears to be trying to put it in a

19 statement of a witness who isn't here through another witness. So if they

20 could provide written submissions on how they say it's admissible, we

21 could certainly respond to it.

22 JUDGE ORIE: Yes. Mr. Re, if you would not object, that might

23 even set a precedent for admitting such -- and I don't know whether you

24 consider this to be advantageous or not advantageous. I leave that up to

25 you, but if you insist on the Defence having to provide reasons for

Page 4551

1 admission --

2 MR. EMMERSON: I'm not entirely sure what the objection is. Your

3 Honour --

4 JUDGE ORIE: No, I think the -- there's no objection as such,

5 but -- I don't know whether I understand you well, Mr. Re. I think that

6 you'd say these are statements given to investigators by persons who do

7 not testify before this Tribunal. And therefore, Mr. Re is seeking, as

8 far as I understand, an answer to the question whether such material where

9 the witness could not attest that the witness -- that the statement

10 reflects what he said and he would give similar answers as we find it in

11 92 bis where there's no cross-examination possible, whether that would

12 be -- cause any problem in admission of these statements into evidence or

13 at least the statements as a whole into evidence, where at another

14 occasion the Prosecution was invited to clearly select what portions of

15 statements could be admitted, yes or no.

16 MR. EMMERSON: Can I indicate that I am -- would be content for

17 those portions that were read into the record in the course of

18 cross-examination to be admitted at this stage, but it may be that the

19 simplest course is to accept Mr. Re's invitation and accept yet another

20 round of written pleadings to be dealt with over the next week or so. And

21 I will file a short submission indicating why it is we say those two

22 medical reports, which is what effectively they are, ought to be admitted.

23 JUDGE ORIE: Yes. Okay. Then I'll move on to D56 and -- no, we

24 don't know yet whether you -- so D56, D57, D58, and D59, we'll wait,

25 although for different reasons, further submissions by the Defence. That

Page 4552

1 is -- I think, Mr. Emmerson, you were the one who was seeking the

2 admission, but of course if other Defence counsel would join in these

3 submissions, that's fine. D60 is quite different, that's the minutes of

4 the 25th of July meeting of the Dukagjini staff. I think we could deal

5 with that.

6 Mr. Re, any objection against D60?

7 MR. RE: No, Your Honour.

8 JUDGE ORIE: Then D60 is admitted into evidence.

9 MR. EMMERSON: Would Your Honour say next Friday for the Defence

10 submission in respect to the four exhibits.

11 JUDGE ORIE: Yes. I always understand that next Friday to be not

12 the first Friday to come but the next week Friday.

13 MR. EMMERSON: Your Honour is quite correct.

14 JUDGE ORIE: In my language, next Friday would be Friday this

15 week, but I slowly learned.

16 MR. EMMERSON: The illogicality of the way we use it.

17 JUDGE ORIE: Yes, that's fine because there is no urgency in the

18 matter, is there, Mr. Re?

19 MR. RE: No urgency, no.

20 JUDGE ORIE: Then your request is granted.

21 Then we move on. Next on our list is P269, photograph marked by

22 Witness 61. Are you seeking, Mr. Re, admission of this photograph?

23 MR. RE: Yes, Your Honour.

24 JUDGE ORIE: Yes. Under seal or as a public document?

25 MR. RE: It was dealt with confidentially, yes, I'd ask that it

Page 4553

1 could be tendered under seal.

2 JUDGE ORIE: Any objection?

3 Then P269 is admitted under seal.

4 After the break we'll deal with the remaining exhibits on the

5 list; to say it briefly, these are the Pappas documents and there is the

6 92 ter statement for Shemsedin Cekaj. Then also any matter remaining from

7 this first session we'd like to address that, so if the parties could

8 please focus on any matter that could not be resolved before this break.

9 We'll adjourn until 11.00.

10 --- Recess taken at 10.31 a.m.

11 --- On resuming at 11.04 a.m.

12 MR. EMMERSON: Your Honour, before we proceed --


14 MR. EMMERSON: -- I wonder if I might seek some clarification in

15 respect of the request from the Trial Chamber for an explanation from the

16 Defence of an apparent inconsistency in approach in respect of one Bislim

17 Zyrapi --


19 MR. EMMERSON: -- exhibit, and the relevant passage of the

20 transcript from this morning is page 14, line 7. We've had an opportunity

21 in the break to review Exhibit P237 to seek to understand what the nature

22 of the apparent inconsistency might be.


24 MR. EMMERSON: Exhibit P237 bears ERN number U000-2980, and under

25 that ERN is an English translation of an authorisation to a particular

Page 4554

1 individual concerned with logging activities; that is, forestry. It's

2 dated the 4th of August, 1998, and in the English translation records

3 commander signed and initialled Ramush Haradinaj. The Albanian original

4 under the same ERN bears a signature, and it's the signature which is

5 familiar of Mr. Haradinaj.

6 Now, originally, in the schedule of documents that objection was

7 taken to, that document was erroneously included because it appeared that

8 there had been no signature on the document. In fact, when Mr. Dixon

9 reviewed the list, it became clear that on the original there was a

10 Haradinaj signature, the same as those Haradinaj signatures where

11 agreement has been reached, and the objection was withdrawn.

12 The clarification that has been sought from us on the transcript

13 asks us to explain why we do not object to the admission of that document,

14 yet oppose the admission of other documents bearing apparently the same

15 signature over the same name. I'm not sure whether there may be a

16 misunderstanding in the premise of the question in the sense that the

17 objections which have been taken have been taken either to unsigned

18 documents or to documents signed by --

19 JUDGE ORIE: Yes. It might be that we have overlooked the

20 withdrawal of the objection.

21 MR. EMMERSON: Except that Your Honour's question is premised on

22 the proposition that we do not oppose the in admission of that document.

23 So I assume from that that Your Honour is aware that we do not oppose the

24 admission of the exhibit, but is asking for a comparison between that

25 exhibit and certain other exhibits which were not specified in the

Page 4555

1 question.

2 JUDGE ORIE: Let me just clarify.

3 MR. RE: I think we might be talking about the wrong exhibit, Your

4 Honour.

5 MR. EMMERSON: That's what I'm wondering.

6 MR. RE: 237 is a actually a different one. I think my colleague

7 is talking about 236.

8 JUDGE ORIE: I haven't got them here at this moment so I can't

9 verify it on the spot.

10 MR. EMMERSON: I can see from the activity in the courtroom around

11 me that it appears that there has been a disconnection between the P

12 numbers on this particular document; in other words, I have just given you

13 an ERN number corresponding to P237, which is the number that appeared on

14 the list of Defence objections against P237. But, in fact, on the list of

15 Zyrapi exhibits that Madam Registrar has provided, P237 bears a different

16 ERN number. So may I in that case withdraw my request for clarification

17 of Your Honour's request --


19 MR. EMMERSON: -- and go back to the drawing board and seek to

20 identify what the comparison properly is.

21 JUDGE ORIE: Thank you, Mr. Emmerson. Then talking about

22 withdrawal, it's full of withdrawals, I think the Chamber has to apologise

23 to the Prosecution for its request for clarification in relation to the

24 statements attached to the witness statements it would like to have

25 admitted under Rule 92 bis where you rightly, Mr. Re, have drawn our

Page 4556

1 attention to the annex to the 27th of March, 2007, motion, which - I've

2 checked that during the break - clearly sets out which paragraphs of the

3 statements of the eight witnesses mentioned are sought to be admitted into

4 evidence.

5 I also noticed that, for example, the statement of Witness 8

6 appears there as well. I can imagine that that would need some further

7 attention, but we'll have to go through that because I saw that some of

8 the witnesses have already appeared here. So we'll have to look at to

9 what extent the statements have been dealt with in their own testimony

10 already, but we'll have a look at that. But the specification has been

11 given in the annex to the 27th of March, partly confidential Prosecution's

12 motion to admit written statements pursuant to Rule 92 bis.

13 I take it that the Defence came to the same conclusion. That's

14 then understood.

15 Then we could continue with going through the list of --

16 MR. GUY-SMITH: With regard -- there do remain some other issues

17 with regard to that particular corrigendum and the manner in which the

18 Prosecution is seeking to have this information presented to the Chamber.

19 I don't know if you want to deal with that at this point.

20 JUDGE ORIE: Well, as a matter of fact, I now took with me the

21 27th of March motion, not the corrigendum, so I have to look that up. If

22 there's time left, I'd first like to finish now the exhibit list; and then

23 at the end after some 92 ter summaries have been read into the record, one

24 last question would be whether there are any other procedural matters to

25 be raised, Mr. Guy-Smith. So, therefore, you'll certainly then find an

Page 4557

1 opportunity to deal with it.

2 I think that we are now at the third page from the end of the

3 list, and we are at P280 as the first of the Pappas exhibits marked for

4 identification. One of the problems is that, of course, the numbering is

5 not --

6 MR. EMMERSON: Sequential.

7 JUDGE ORIE: -- sequential. Yes. At the same time we could --

8 you have got this list?

9 MR. EMMERSON: I have.

10 JUDGE ORIE: If there are any objections, if you would first

11 address them, we would find it on the list and we would see whether

12 there's any --

13 MR. EMMERSON: One introductory comment: As in relation to other

14 witnesses, the Defence cross-examination bundle has now been re-indexed

15 with the MFI numbers marked upon it; and, as I indicated, I hope as I was

16 going through in cross-examination as often as I could on the transcript

17 where a P number was being relied upon, I sought to identify that in the

18 course of cross-examination.

19 Second introductory comment: Your Honour raised during the course

20 of evidence in chief the manner in which the Prosecution was seeking to

21 deploy certain documents through that witness, and in particular

22 Mr. Di Fazio's mode of examination-in-chief was to show the witness one or

23 two documents without, by and large, exploring the significance of the

24 content but simply to identify the appearance, style, and presentation of

25 the document on the basis of which he then sought to admit other documents

Page 4558

1 without examining their contents or relevance.

2 Your Honour at that stage, from recollection, invited the

3 Prosecution to consider identifying and highlighting for the parties and

4 for the Trial Chamber what it was in particular documents that they sought

5 to rely upon so that the relevance of the material could be considered

6 before decisions being taken on admission.

7 Now, I'm certainly not aware of having received any clarification

8 from Mr. Di Fazio in that respect, but may I take this matter one stage

9 further. If one begins with P280 on the list, may I simply indicate to

10 Your Honours which of the exhibits that then follow, either Prosecution or

11 Defence, are tendered by the Defence or accepted by the Defence because

12 they were relied upon and explored in cross-examination; in other words,

13 their significance and content has, in fact, been dealt with, albeit by

14 the Defence in cross-examination rather than by the Prosecution. The

15 first then clutch are D63 --

16 THE INTERPRETER: Kindly slow down, Mr. Emmerson, please.

17 MR. EMMERSON: I think we all heard the observation.

18 The first clutch is D63, D62, and D64. Those are documents

19 introduced by the Defence. D62 and D63 are tendered. We would invite you

20 to leave D64, which is the first extract from the Kaufmann book, as a

21 document marked for identification, but we do not tender it.

22 JUDGE ORIE: Yes, it was an extract. It is described as "book,"

23 but it was --


25 JUDGE ORIE: -- an extract.

Page 4559

1 MR. EMMERSON: Just to be clear, and this comes to Your Honour's

2 point about sequential numbering, the fourth entry from the very end of

3 Madam Registrar's schedule is D65, which is also described as an excerpt.

4 That is the second excerpt. And in respect of both of those excerpts, our

5 position is the same; namely, we do not tender them for admission. The

6 relevant passages were put to the witness and they remain marked for

7 identification.

8 JUDGE ORIE: Yes. I think you read them out all in full, at least

9 the extracts.

10 MR. EMMERSON: Precisely so.


12 MR. EMMERSON: But for the purposes of hyper-linking from the

13 transcript, it might be wise if they remained marked for identification.


15 MR. EMMERSON: Moving on, the next document explored in

16 cross-examination was P305, and there is no objection to that document's

17 admission.

18 The next-but-one, P316, was explored and in the bundle, and

19 there's no objection to admission.

20 Over the page, same applies to P312, P309, and P284.

21 JUDGE ORIE: Let me just find 309. One second.

22 MR. EMMERSON: They are immediately underneath one another. I'm

23 reading them in the order they appear on Madam Registrar's list. This is

24 the top of the next page. It starts at 313, unless Your Honour's list is

25 different from mine.

Page 4560

1 [Trial Chamber confers]

2 JUDGE ORIE: I'm with you again, Mr. Emmerson. Please proceed.

3 MR. EMMERSON: Thank you very much.

4 And I'll take them if I may in the order they appear in Madam

5 Registrar's list and indicate where they are sequential. So at the top of

6 that page the first one is P312; then immediately following, P309.

7 JUDGE ORIE: Yes. 309.

8 MR. EMMERSON: It should be immediately after 312. It should be

9 the following entry.

10 JUDGE ORIE: One second, please.

11 Yes. I'm now at P284. That was the last one you mentioned

12 earlier, isn't it?

13 MR. EMMERSON: Correct.

14 JUDGE ORIE: Yes. I'm at P284, yes.

15 MR. EMMERSON: Then dropping down three, the next relevant exhibit

16 in this category is 315, P315.


18 MR. EMMERSON: And following that immediately, P302.


20 MR. EMMERSON: Then the next-but-one, P282.


22 MR. EMMERSON: The next-but-one again, P308.


24 MR. EMMERSON: The next-but-one, P304.


Page 4561

1 MR. EMMERSON: The next-but-one, P299.


3 MR. EMMERSON: The immediately following exhibit, P300.


5 MR. EMMERSON: And then the next-but-one on that page, P294.


7 MR. EMMERSON: Then there are some on the final page. If I can

8 take it from the top, P292.


10 MR. EMMERSON: It should be the top of the following page or the

11 next-but-one.

12 JUDGE ORIE: Yes. Yes. The problem is your pages are different

13 from mine.

14 MR. EMMERSON: Well, then --

15 JUDGE ORIE: P292.

16 MR. EMMERSON: Exactly.

17 JUDGE ORIE: That is media report.

18 MR. EMMERSON: Yes. P291.

19 JUDGE ORIE: That's the immediate following one.

20 MR. EMMERSON: P290, immediately following.

21 JUDGE ORIE: 290, yes.

22 MR. EMMERSON: Then leaving three out.


24 MR. EMMERSON: P283.


Page 4562





5 MR. EMMERSON: And P281.


7 MR. EMMERSON: That concludes the position as far as the P

8 exhibits are concerned save for this. There are two documents which bear

9 a P number that are amongst the tabs to the Haradinaj cross-examination

10 bundle for this witness that do not appear on this list. They are P277

11 and P280. Now, the reason P277 doesn't appear on the list is because it

12 was exhibited in the course of the testimony, so it was marked for

13 identification and exhibited. But according to our records, P280 was

14 marked for identification but not exhibited.


16 MR. EMMERSON: I think that ought to be on this list.

17 JUDGE ORIE: We could ask Madam Registrar about P280.

18 Madam Registrar, could you inform us about the status of P280,

19 which apparently does not appear on the list.

20 MR. DI FAZIO: I think it does.

21 JUDGE ORIE: It does. Let's see where it is.

22 MR. DI FAZIO: It's right at the beginning of --

23 JUDGE ORIE: Yes. P280, that's the first one.

24 MR. DI FAZIO: It's the very first one.

25 JUDGE ORIE: The very first one.

Page 4563

1 MR. EMMERSON: Your Honour, I think the fact that the numbers are

2 not sequential are slightly threatening. In that case, the two correlate.

3 That leaves an outstanding position in respect of that clutch of

4 documents that do not fall within the category of material that was

5 explored either in examination-in-chief or in cross-examination, and we

6 would invite the Trial Chamber to invite the Prosecution to respond to the

7 request that was made earlier to indicate the relevance of the material

8 and why it is that it ought to be admitted.

9 JUDGE ORIE: Yes. Could I first ask you, Mr. Emmerson. I think

10 you dealt with P62, P63, both tendered, D64 --

11 MR. EMMERSON: Sorry, Your Honour --

12 JUDGE ORIE: -- considered of relevance but not tendered. That's

13 the first extract.

14 Then we have the --

15 MR. EMMERSON: Sorry. May I interrupt, Your Honour.


17 MR. EMMERSON: Just for the sake of the transcript, and given that

18 numbers are critical here, Your Honour's last comment refers to P62 and

19 P63.

20 JUDGE ORIE: No, it should be D. I apologise for having

21 misspoken.

22 D62 and D63 are used by the Defence and are tendered. D64 was

23 used but not tendered.

24 MR. EMMERSON: Correct.

25 JUDGE ORIE: That's the Kaufmann book.

Page 4564

1 MR. EMMERSON: Correct.

2 JUDGE ORIE: The same would be true for the excerpt from book by

3 Kaufmann, D65 --

4 MR. EMMERSON: Correct.

5 JUDGE ORIE: -- which was not tendered because everything put to

6 the witness has been read to him.

7 Now, I have D66 and D67, the one being a video-clip and the other

8 an excerpt from -- it says the 8th of September, 1998 --


10 JUDGE ORIE: -- have not been dealt with yet. I take it since

11 they were introduced by the Defence, that at least you consider them --

12 MR. EMMERSON: Yes. Can I indicate what they are?


14 MR. EMMERSON: And I'm tendering both.


16 MR. EMMERSON: The first, D66, is the video-clip which showed

17 Mr. Pappas walking behind an argument between Mr. Kaufmann and --


19 MR. DI FAZIO: No objection. There's no objection to that.

20 MR. EMMERSON: Thank you. Then D67 was a document I proposed to

21 tender from the bar table.


23 MR. EMMERSON: Can I just indicate that's in the Defence bundle,

24 D67 is tab 28, and it records the date of disappearance of -- I'm just

25 trying to recall whether the names can be mentioned in open session. No,

Page 4565

1 I think not. It records the date of disappearance of an Albanian Catholic

2 couple about whom Witness 21 gave evidence, and Your Honour will recall

3 that the date of disappearance is relevant to determining when it was that

4 Witness 21 attended the canal and saw bodies on the field.


6 MR. EMMERSON: That is an ECMM record recording when the family

7 said that that couple had gone missing.


9 MR. EMMERSON: So that is not dealt with --

10 JUDGE ORIE: What we then -- perhaps we then should change the

11 description of D67 in ECMM record or excerpts from ECMM record dated the

12 8th of September, 1998.


14 JUDGE ORIE: Okay. Now, let's try to see what we can get off this

15 list. Yes.

16 MR. EMMERSON: Could I just add two other matters?


18 MR. EMMERSON: First of all, Your Honour will recall that I

19 played, during cross-examination of Mr. Pappas, the BBC footage of the

20 Serbian attack on Gllogjan and Irzniq on the 12th of August, and that

21 appears in the transcript at page 4284, line 19. That is where the video

22 was played. It was not marked for identification at the time, and I would

23 like it, if I may, please, to be marked for identification and tendered.


25 MR. EMMERSON: There is a transcript in respect of that.

Page 4566

1 JUDGE ORIE: Madam Registrar --

2 MR. DI FAZIO: No objection in relation to that item, if I may

3 add, the video-clip.

4 JUDGE ORIE: Yes. You mean the BBC video-clip?

5 MR. DI FAZIO: That's right. There's no objection.

6 JUDGE ORIE: Then, Madam Registrar, that would be number?

7 THE REGISTRAR: Your Honours, this will be Exhibit Number D69.


9 MR. EMMERSON: And then --


11 MR. EMMERSON: -- one final comment for the sake of clarification.

12 P299 and P300, which I'm looking for a moment for their reference here,

13 they're both on the list. Yes. I'm not quite sure on which of Your

14 Honour's pages they will appear.

15 JUDGE ORIE: P299, assessment of KLA territorial control.

16 MR. EMMERSON: Correct.

17 JUDGE ORIE: And the other one, P300 --

18 MR. EMMERSON: P300.

19 JUDGE ORIE: -- is next on the list, continued assessment of

20 R025-4294, assessment of KLA command and control.

21 Yes.

22 MR. EMMERSON: They are, in fact, one document; in other words,

23 they've been entered in the system in error as two separate documents.

24 But in fact, they are one document taken together. So when Your Honours

25 received the index filed, it will say in respect of what was tab 6 in the

Page 4567

1 cross-examination bundle, P299 and P300, because the exhibit spreads

2 across two exhibit numbers and two computer entries, and it may now be

3 probably a bit late to correct that.

4 JUDGE ORIE: Yes. Thank you for those further observations.

5 Could we try, first, to focus on the exhibits introduced by the

6 Defence, and could I ask the Prosecution to see whether there's any

7 objection. I start with D63.

8 MR. DI FAZIO: No objection to that, nor the, if Your Honours

9 please, the next one, D62.

10 JUDGE ORIE: Then D62 and D63 are admitted into evidence.

11 MR. DI FAZIO: Nor the extract --

12 JUDGE ORIE: Could I just --

13 MR. DI FAZIO: Oh, sorry.

14 JUDGE ORIE: Yes. But the extract is not tendered, so therefore

15 D64 is not tendered so we can refrain from asking whether you object

16 there. Then I move on to D66. That is the video-clip with Mr. Pappas in

17 the background.

18 MR. DI FAZIO: No objection, if Your Honours please.

19 JUDGE ORIE: No objection. Then D66 is admitted into evidence.

20 D67, that is the excerpt from the ECMM records. Any objections

21 against that?

22 MR. DI FAZIO: No. If Your Honours please, no objection.

23 JUDGE ORIE: Then D67 is admitted into evidence. D69 being the

24 BBC video of the conflict or, as said by Mr. Emmerson, the attack on

25 Gllogjan. Any objection?

Page 4568

1 MR. DI FAZIO: I just can't quite locate it, but --

2 JUDGE ORIE: No. It has been introduced by Mr. Emmerson two

3 minutes ago.

4 MR. DI FAZIO: Yes.

5 JUDGE ORIE: So it does not appear on the list. Madam Registrar

6 has assigned number D69 to it.

7 MR. DI FAZIO: In any event, I can say this: The Prosecution does

8 not object to the BBC news clip.

9 JUDGE ORIE: Then D69 is also admitted into evidence.

10 I think we have now dealt with all the Defence exhibits on the

11 list. I would now try to go through the list of Prosecution exhibits, but

12 we'll leave out all the Prosecution exhibits for which the Defence has

13 sought -- as requested further submissions by the Prosecution, let's say,

14 on relevance or the meaning exactly what it would mean to admit them into

15 evidence. You've heard what Mr. Emmerson had said about it. First of

16 all, would you oppose to making further submissions on those documents he

17 has not --

18 MR. DI FAZIO: Agreed to.

19 JUDGE ORIE: He has not agreed to?

20 MR. DI FAZIO: Yes. In fact, that's precisely the course of

21 action that I urge upon the Trial Chamber, and I understood was to be the

22 manner in which we would deal with this issue.

23 JUDGE ORIE: Yes. Then if we could just go through the list and

24 see, because we will admit all the others.

25 MR. DI FAZIO: Yes.

Page 4569

1 JUDGE ORIE: Yes. So I have P280 waits for further submissions;

2 the same would be true for P307; the same would be true for P293. P305 is

3 not objected and is, therefore, admitted. I take it that everyone follows

4 the list clearly. P298 waits for further submission; P316 is admitted

5 into evidence; P313 waits for further submissions; P312 is admitted into

6 evidence; P309 is admitted into evidence; P284 is admitted into evidence;

7 P287 waits for further submissions by the Prosecution; P297 waits for

8 further submissions by the Prosecution; P296 also waits for further

9 submissions; P315 is admitted into evidence; P302 is admitted into

10 evidence; P301 -- yes, P301 waits for further submissions by the

11 Prosecution; P282 is admitted into evidence; P306 is waiting for further

12 submissions; P308 is admitted into evidence; P311 waits for further

13 submissions; P304 is admitted into evidence; P303 waits for further

14 submissions.

15 P299 and P300, Madam Registrar, how to make that one item again?

16 What's the most -- well, they are admitted into evidence, and the number,

17 the final number, to be assigned to it will be further discussed between

18 Madam Registrar and the Bench, and the parties will be informed about

19 that.

20 P295 waits for further submissions by the Prosecution; P294 is

21 admitted into evidence; P285 waits for further submissions; P292 is

22 admitted into evidence; the same P291 and P290; then P289 is waiting for

23 further submissions; the same for P288 and the same for P286; whereas,

24 P283 is admitted into evidence.

25 P314 is admitted into evidence; P310 is admitted into evidence;

Page 4570

1 and P281 is also admitted into evidence.

2 Then I think we went through the list, if I did not make any

3 mistakes. We would move on to P317, and that is the 92 ter statement for

4 Shemsedin Cekaj. Any objection? No objections I see from the Defence.

5 Then P317 is admitted into evidence.

6 I think we now went through the whole of the list as was prepared

7 by Madam Registrar.

8 MR. EMMERSON: Just one final comment if I may --


10 MR. EMMERSON: -- in relation to the Pappas material. In many

11 instances, a particular 65 ter number, therefore what is now a P number,

12 will contain a clutch of documents, only one of which the Defence has

13 selected and highlighted for the purpose of the cross-examination bundle.

14 Now, the index to the cross-examination bundle will make it clear which

15 page within that exhibit was, in fact, tab 3, for example; but it may be,

16 for the sake of absolute clarity, it would be wiser for those particular

17 instances to be dealt with by the Defence isolating the pages and inviting

18 the Trial Chamber to ascribe a D number to those particular pages. But

19 rather than do that today, might I prepare overnight a short list of those

20 documents and raise them at a convenient time tomorrow so the matter can

21 be tidied up.


23 MR. EMMERSON: The other thing is there is a rather amount of

24 entries in relation to these documents where the description given is

25 contentious and in some cases --

Page 4571

1 JUDGE ORIE: Yes. I suggest on the following. If there's any

2 suggestion for improvement on the description, that a table is provided to

3 the Chamber for review, clearly marking what the suggestion is for the

4 change so that we can see what it originally was either by striking

5 through or by using whatever --

6 MR. EMMERSON: Track changes.

7 JUDGE ORIE: Yes. Track changes or whatever options your word

8 processor gives you to make clear what it was what the suggestion should

9 be.

10 MR. EMMERSON: Very well. If it would make matters cleaner and

11 more convenient, I can in fact deal with those four documents where

12 individual pages were exhibited now on the transcript and have them marked

13 and admitted as D numbers, or I can deal with them in writing, whatever is

14 more convenient to Your Honour.

15 JUDGE ORIE: I suggest that we do it in writing.

16 Then I have nothing else on my agenda list, apart from the

17 following. I think that the Chamber received a couple of motions to issue

18 subpoenas. Is there any wish by any of the Defence teams to respond to

19 those motions. I see nodding three times "no." So the Chamber will

20 proceed on the basis of the requests.

21 Then I think there are two 92 ter statements still to be read into

22 the record, Mr. Re. Is that correct? Then I invite you to read them into

23 the record.

24 MR. RE: Yes. Thank you.

25 The first one is in relation to Witness 29, who testified on the

Page 4572

1 26th of April, with transcript reference page 3475 to 3495, and the Rule

2 92 ter statement is Exhibit P263. For the purposes of the transcript

3 record, the summary of his 92 ter statement is the following.

4 It consists of nine paragraphs describing his involvement in the

5 formation and early organisation of the armed forces of the Republic of

6 Kosovo, also known as FARK, F-A-R-K. The witness was personally involved

7 in the FARK during the time of its formation in 1991 or 1992. The witness

8 moved from Kosovo to Albania, where he became a soldier under the command

9 of Sali Ceku.

10 By early 1993 the armed forces of Kosovo, that's FARK, was formed.

11 FARK was aligned with the -- FARK was aligned --


13 MR. RE: -- with the Democratic League of Kosovo, LDK. Between

14 1993 and 1996, FARK did not physically exist as an armed force. During

15 this time, the witness was involved in collecting the names of suitable

16 candidates to join the FARK and acquiring and storing arms. Sometime

17 around 1997, the FARK began to issue uniforms and the headquarters were

18 established in Tirana, Albania. Ahmet Krasniqi, the Minister of Defence

19 of the government of Kosovo, appointed Tahir Zemaj as commander of the

20 FARK in charge of the Dukagjin Zone. A total of 29 -- sorry, 21 persons,

21 each an experienced professional soldier, were selected as FARK officers.

22 That completes the summary of Witness 29.

23 The other summary is that of Shemsedin Cekaj, who testified --

24 MR. EMMERSON: I'm sorry to interrupt. But just before Mr. Re

25 continues, I'm never quite sure what is a transcript error that will

Page 4573

1 inevitably be picked up and what isn't. But line 21 on page 52, Mr. Re's

2 reading of that transcript -- I'm sorry, Mr. Re's reading of that summary

3 was attributed to me.

4 JUDGE ORIE: No. For history, you'll certainly not be the one who

5 reads out the 92 ter statements for the Prosecution.

6 Mr. Re, please proceed.

7 MR. RE: The second is Shemsedin Cekaj, who testified on the 16th

8 and 17th of May, 2007, at transcript pages 4378 to 4513, and his Rule 92

9 ter statement is Exhibit P317. This is the statement of it for the

10 purposes of -- this is the summary of it, sorry, for the purposes of the

11 transcript. And I note that the interpreters all have a copy of the

12 summary I'm reading.

13 Shemsedin Cekaj was born in Irzniq in 1958. After completing high

14 school in Decane, he attended the military academy in Belgrade. After

15 completing the academy in 1981, he served with the JNA in Negotin, Serbia,

16 until he was demobilised in 1992. At the time of his mobilisation [sic],

17 he held the rank of captain first class.

18 From 1992 to early 1998, the witness lived in Peje with his family

19 and worked as a civilian. He first became aware of the KLA appearing in

20 the open when he saw on television three masked and uniformed KLA members

21 attending the funeral of a teacher in Llaushe on November 28th, 1997.

22 The attack involving the Jashari family on the 5th to 7th of

23 March, 1998, in Prekaz first motivated the witness to join the KLA. The

24 witness made the decision to join the KLA after Ramush Haradinaj's family

25 compound was attacked on 24th of March, 1998. After the 24th of March

Page 4574

1 attack, the witness began seeing uniformed KLA soldiers in the streets.

2 Sometime in early 1998, probably before the Prekaz attack, the

3 witness participated in a large public demonstration held at the bus

4 station in Decane. Approximately 30.000 to 40.000 people gathered to show

5 support for the KLA. At that time, according to the witness: "You could

6 smell the war in Kosovo."

7 After the 24th of March attack, the KLA in the villages within the

8 Dukagjin area mobilised and set up defence systems. In mid-May, the

9 witness moved to Irzniq. The day he arrived, he held a meeting with

10 members of the Irzniq KLA staff. At this meeting, he learned that the

11 Irzniq KLA was well-organised. It had already set up trenches, formed

12 units, and trained soldiers. The Irzniq KLA had set up a command

13 structure; however, as everyone in the KLA was a volunteer, this structure

14 was not entirely realised. The total number of KLA soldiers in Irzniq

15 varied between 120 and 170 based on the circumstances. In mid-May the KLA

16 had approximately one weapon for each of the 350 households in the

17 village.

18 At that time, most of the Irzniq KLA soldiers were stationed to

19 the west of Irzniq on the Irzniq-Prilep road. This was a secondary

20 defence position in case the front line at Prilep was penetrated. In June

21 the soldiers moved closer to the front at Prilep and Grdaje to reinforce

22 the front line.

23 The day the witness moved to Irzniq, he attended a large meeting

24 in Gllogjan. Representatives of the village KLA staffs of almost all

25 villages in the Dukagjin area attended; however, the villages on the west

Page 4575

1 side of the road were not able to attend due to the conflict situation.

2 Ramush Haradinaj opened the meeting.

3 Around 25th to 27th of May, there was a Serb offensive into KLA

4 territory from the north and west. Serbian forces got as far as Krushec

5 and Vranoc in the north before withdrawing. They tried to take Prilep and

6 Rastavica in the west but were unsuccessful.

7 On 3rd of June, 1998, Sali Veseli, a former JNA officer who was

8 previously known to the witness, arrived in Kosovo from abroad and went to

9 Gllogjan to meeting with Ramush Haradinaj. A meeting was held at the

10 Gllogjan KLA staff where those present, including Ramush Haradinaj and the

11 witness, briefed Sali Veseli on the situation. It was agreed that Veseli

12 would go to Junik, as this was a strategic location along the supply lines

13 between Albania and the Dukagjin area.

14 Around 24th of June, 1998, the witness attended a meeting in

15 Jablanica at Lahi Brahimaj's house. Present at the meeting were, among

16 others: Ramush Haradinaj, Sali Veseli, Rrustem Tetaj, Skender

17 Rexhahmetaj, Lahi Brahimaj, Nazmi Brahimaj, and Rexhep Selimi. Rexhep

18 Selimi introduced himself as a representative of the General Staff. At

19 this meeting, two candidates for commander of the Dukagjin Plain emerged:

20 Ramush Haradinaj and Lahi Brahimaj. A vote was held and Ramush Haradinaj

21 was elected commander. Lahi Brahimaj became the deputy commander.

22 However, approximately two weeks later, the witness was informed that

23 Ramush had replaced Lahi Brahimaj with Nazmi Brahimaj as his deputy.

24 A group of soldiers arrived from Albania around the end of June

25 1998. The group was referred to as the FARK, but the witness considered

Page 4576

1 them part of the KLA. The witness knew Tahir Zemaj from his time in the

2 JNA, and the witness was enthusiastic about the arrival of this group of

3 military professionals.

4 In early July, the witness's position within the KLA changed. On

5 12th of July, 1998, three brigades were formed: The 131st, led by Nazif

6 Ramabaja, based in Baran; the 132nd, led by the witness, based in

7 Bardhaniq/Zhabel; and the 134th, led by Tahir Zemaj, based in Prapaqan.

8 There was another Serbian offensive that began on the morning of

9 11th of August, 1998. Serbian forces came east from the Decane-Gjakove

10 main road into Baballoq, Rastavica, and Carrabreg. They got as far as

11 Gllogjan, Dubrava, and Shaptej. The witness thought their aim was to

12 control the axis along Gllogjan-Irzniq-Beleg-Decane and to destroy the

13 villages they took along the way. As they moved into the area, the KLA

14 withdrew along with the civilian population to villages inside the area

15 of the fighting, such as Kodrali, Pozhare, Broliq, Lumbardh, and Lluka e

16 Ulet.

17 There was limited KLA resistance to this offensive, which was

18 hampered by a lack of artillery weapons and a shortage of ammunition. The

19 Serbian forces withdrew on the evening of 11th of August, 1998, and

20 re-entered the area on the afternoon of the following day. They returned

21 to the same villages as they had been to the day before, burning the

22 remainder of the houses in these villages. This marked the end of the

23 offensive, and the KLA then returned to its previous positions.

24 JUDGE ORIE: Yes, Mr. Emmerson.

25 MR. EMMERSON: May I record, for the record, that the summary that

Page 4577

1 Mr. Re has just read, page 56, line 19, was not supported directly by the

2 testimony that the witness gave on oath; in other words, he gave different

3 dates in respect of that matter.

4 JUDGE ORIE: Yes. The purpose of reading 92 ter statements is to

5 inform the public about what is found in these statements, whether

6 contradicted or not, that's comment rather than anything else. So,

7 therefore, I think Mr. Re did what he was expected to do; and, of course,

8 those who are following the proceedings here might notice that there is --

9 that the written information is contradicted. Of course, it puts also a

10 certain light on 92 ter statements, whether the witness would have given

11 these same answers.

12 MR. EMMERSON: That's the reason I mentioned it.

13 JUDGE ORIE: Yes. At the same time, such an attestation would not

14 for the full hundred per cent ensure that there will never be any

15 inconsistency or contradiction, but it's on the record now and I take it

16 that if these things happen that the parties will draw the attention of

17 the Chamber thereto.

18 Mr. Re, it's always difficult to find the right balance between

19 informing the public and giving so much details. This was a rather

20 detailed 92 ter summary. The Chamber would be happy already with a

21 general impression of what the testimony was about, and those who are

22 really interested to know all the details, of course, have access to the

23 records which contain the statement in full.

24 Then a matter not on the agenda, but I just briefly raise it is

25 the following. The Chamber has received copies of proposals sent by the

Page 4578

1 OTP on agreed facts to the Defence. The Chamber now understands that

2 these proposals are certainly not the finalised result of negotiations.

3 In general, the Chamber is very much interested to know what progress is

4 made, but the Chamber is not interested to see where exactly proposals are

5 not accepted. Negotiations between the parties on these matters are not

6 to be made available to the Chamber. So, therefore, any report on

7 progress made, fine, but without giving details because the Chamber has

8 not read them, the Chamber will not read them.

9 The Chamber is mainly interested to see the final list. And if I

10 may urge the parties to see whether they can come with a final list as

11 soon as possible, because a list of agreed facts serves the Chamber and

12 the parties so as not to lead any evidence on those matters. If, finally,

13 after the presentation of the Prosecution's case we would come up with a

14 list of agreed facts, then of course necessarily the purpose is -- could

15 not be served at that point in time anymore.

16 So, therefore, the parties are encouraged to finalise this as soon

17 as possible.

18 MR. EMMERSON: First of all, may I say very considerable progress

19 has been made and is being made, and I don't foresee any significant

20 obstacles to achievement of what Your Honour is requesting. Your Honour

21 may remember that some weeks ago now, I think just before the Easter

22 break, I raised a housekeeping list of issues, one of which was to invite

23 the Prosecution to respond in more detail to the military agreed facts

24 that the Defence has submitted with supporting documentation before the

25 trial began.

Page 4579

1 And Mr. Re's response at that stage was that he had understandably

2 insufficient notice to respond to it at the time, but that is an issue

3 that does need to be taken forward, and the Prosecution's position needs

4 clarification. And may I, therefore, again urge that that be a matter

5 that is moved up the priority list because so far as the comments that

6 Your Honour has just made are concerned and so far as agreement can be

7 reached on those matters, there is obviously scope for reducing oral

8 evidence.


10 Mr. Re, could you inform us on where it approximately is on your

11 priority list, whether it could even move up from there.

12 MR. RE: It's up there. We are dealing with it. In relation to

13 getting something together, the form in which we're trying to get it, I'm

14 not telling you what's in it, is in a form in which it could slip into a

15 judgement whatever way a judgement goes and that's the aim of what we're

16 trying to do in the negotiations to come up with a form of wording which

17 is acceptable to both sides, all parties, so that it could be put straight

18 into a judgement as agreed without further qualification.

19 JUDGE ORIE: It's fine to give it that format, but for the

20 Chamber, most importantly, is agreement between the parties and how to put

21 it in the judgement is a matter which, of course, the Chamber appreciates

22 your concerns, but urges you to focus on results rather than on format.

23 Is there any other matter, procedural matter, to be raised at this

24 moment?

25 MR. EMMERSON: Just one so far as I'm concerned. Following the

Page 4580

1 end of the hearing last Thursday and the conclusion of the post-hearing

2 interparties' meeting about the scheduling for this week, the Prosecution

3 and the Defence had a meeting about witness planning. And yesterday

4 Mr. Re indicated by e-mail the names of two witnesses who are scheduled to

5 give evidence next week. Before I mention their names, I'm looking to see

6 if there's any likely application for protective measures in respect of

7 either of them. I think the witness being dealt with by Mr. Kearney is

8 not a witness for whom there could conceivably be a protective measures

9 application. It's simply Mr. Di Fazio's witness.

10 MR. RE: He says no.

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 Without going into details, I simply put the Prosecution and the

19 Trial Chamber on notice that depending upon the content of such statement

20 when it arrives, it may well prove to be a situation in which it is too

21 late to have served the content of fresh evidence to call him next week.

22 It may well give rise to investigations. I've sought clarification from

23 the Prosecution in the past as to whether the statement will reflect the

24 suspect interview in broad terms, and that clarification has not been

25 provided to me; in other words, I was not given that assurance.

Page 4581

1 So I'm simply laying down a marker now that the late service of a

2 new statement from someone who's been interviewed as a suspect is very

3 likely to result in the need for investigations, and I've made that clear

4 for some time to the Prosecution, that late service of his statement

5 followed by a few days' notice of when it is he is to be called is not a

6 situation which I am prepared to willingly acquiesce.

7 A similar statement arises in respect to the other witness from

8 whom notification was given, Jakup Krasniqi, no witness statement from

9 him, although he did testify in the Limaj case and there is a transcript

10 available. I reserve my position in respect of that until I have seen the

11 statement that the Prosecution wishes to serve.

12 MR. GUY-SMITH: I join specifically to those remarks with regard

13 to those two witnesses.

14 JUDGE ORIE: And I see that Brahimaj Defence is doing the same.

15 Mr. Re, is there any chance that you would provide the Defence

16 with such information that would not cause them to ask for more time?

17 MR. RE: The situation is that we are re-interviewing him on the

18 same terms as last time; that is, as a suspect interview. We will

19 disclose the tape of that interview. We should be able to do it tomorrow.

20 JUDGE ORIE: Mr. Emmerson.

21 MR. EMMERSON: I indicated to Mr. Re about six or seven weeks ago,

22 when he first suggested to me that this man may be a witness in this case,

23 that as and when we knew what evidence the Prosecution proposed to elicit,

24 we would inevitably need a period for investigation. I think it's

25 extremely unlikely that we will be able to deal with this witness next

Page 4582

1 week.

2 JUDGE ORIE: Mr. Re, first of all, before we continue I'd like to

3 have a redaction made. It seems the first witness you talked about has

4 been assigned a pseudonym from what I understand pre-trial. Therefore,

5 we'll check that, first of all, but, Madam Registrar, that would be --

6 MR. GUY-SMITH: I believe it was 37.

7 JUDGE ORIE: Yes, it was 37, I would agree with that.

8 Yes, Madam Registrar, that would be page 60, line 20 and going

9 on.

10 MR. DI FAZIO: If Your Honours please.


12 MR. DI FAZIO: I was dealing with that witness. I led Mr. Re into

13 error there, and I apologise for any inconvenience caused to the court.

14 It is a matter that is my responsibility.

15 JUDGE ORIE: Yes. It is a matter of inconvenience for the witness

16 rather than for the Court, Mr. Di Fazio.

17 MR. EMMERSON: If Mr. Di Fazio has carriage of the witness, one

18 would expect him to know whether he is proposing to make an application

19 for protective measures for his testimony.

20 JUDGE ORIE: Yes. But the first concern now is, let's say you

21 would provide the tape by tomorrow, of course, the Defence is urged to see

22 what it can do and we'll perhaps at a later stage have to -- let's not

23 anticipate on what will happen. You could expect the tape tomorrow.

24 Then anything about the second witness mentioned by Mr. Emmerson?

25 MR. RE: Mr. Di Fazio tells me in relation to the first one that

Page 4583

1 there is nothing new to the case that the witness has so far said to him.

2 He will speak to him again this afternoon. And in that sense, we are

3 reasonably confident there is nothing which would require further

4 investigation.

5 In relation to the second witness, I won't be able to inform the

6 Trial Chamber until tomorrow, because we're speaking to him this

7 afternoon, as to whether there is anything additional to his statements

8 which have already been served on the Defence.

9 JUDGE ORIE: Yes. You would say for the first witness - we're in

10 private session now (redacted) -- oh, we're not. I apologise. We

11 should have turned into -- I asked for a redaction but I should have asked

12 to go into private session as well. Well, in relation to the first

13 witness could you make a --

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 4584











11 Pages 4584-4585 redacted. Private session.















Page 4586

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 THE REGISTRAR: Your Honours, we're in open session.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 Mr. Guy-Smith.

12 MR. GUY-SMITH: Yes. There are two issues. One is the remaining

13 issue of the translation of the statement from Mr. Pappas and what is the

14 status of that. We have yet to receive that statement.


16 MR. DI FAZIO: I understand that's to hand. It needs to be dealt

17 with by some procedural matters, and I'm hopeful that we'll be able to

18 forward it on this afternoon.

19 JUDGE ORIE: Okay.

20 MR. GUY-SMITH: The second issue deals with a matter that Your

21 Honour raised earlier concerning the corrigendum that had been filed. At

22 this point, I don't know whether or not Your Honours wished for us to

23 respond to that particular document or not. Looking at the remarks made

24 by the Chamber, even if we are to deal with the specific paragraphs sought

25 to be introduced by the Prosecution through the 92 bis procedure, I think

Page 4587

1 the same analysis applies, that was made, which is the investigators

2 cannot at least attest that the witness's statements are true and correct

3 and accurately reflect what the witness would say if examined. So I think

4 we remain in the same position.

5 JUDGE ORIE: Well, of course, we'll have to look at these specific

6 paragraphs. We have not done that yet. But corrigendum or not, of

7 course, the Defence has not given an opportunity yet to respond on the

8 corrected now submission. So they could include I think whatever the

9 Defence would like to include; and where the Chamber earlier sought

10 clarification, that was an expression of the concern, the Chamber, by

11 mistake, had. If there's any remaining concern with the Defence, of

12 course, they can deal with it in their response.

13 MR. GUY-SMITH: Very well.

14 JUDGE ORIE: But the Chamber at this moment is not seeking any

15 further clarification.

16 MR. GUY-SMITH: Very well. Then we shall do so.

17 JUDGE ORIE: Yes. Please do so.

18 Mr. Emmerson.

19 MR. EMMERSON: I'm sorry to return to the issue of the witness for

20 next week. May I just mention one final matter in closed session, please.

21 JUDGE ORIE: Yes. Private session would do I take it.

22 MR. EMMERSON: Private session.

23 [Private session]

24 (redacted)

25 (redacted)

Page 4588











11 Page 4588 redacted. Private session.















Page 4589

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 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 THE REGISTRAR: Your Honours, we're back in open session.

25 JUDGE ORIE: Thank you, Madam Registrar.

Page 4590

1 MR. GUY-SMITH: I don't know if it will be of any help to the

2 Chamber or not; however, I'm going back once again to the corrigendum for

3 a moment. The corrigendum as presently constituted I believe, based on my

4 review of the law, should be stricken because what in fact is an entirety

5 of all the statements, and it would be appropriate for the Prosecution to

6 re-file those particular paragraphs that it wishes to have admitted under

7 the 92 bis procedure attached to the statements of those investigators.

8 I don't know whether or not that's something that will make life

9 easier for us or not, but that's one of the matters that I can obviously

10 deal with in the response. It's just that we are catapulting into

11 referrals after referrals after referrals to particular areas, and it may

12 be of more benefit to all the parties involved to have the particular

13 evidence that is under consideration highlighted.

14 JUDGE ORIE: Yes. Please address the matter in your response.

15 Any further matter?

16 MR. EMMERSON: There is very briefly one further matter. Your

17 Honour's question about the Zyrapi exhibit inconsistency has resulted in

18 an examination of how the situation has come about taking place to my

19 left. And what has been identified is that in the schedule that was

20 attached to the Defence submission, somewhere about two-thirds or

21 three-quarters of the way along, there has been a numerical error which

22 has put out all of the numbers now from that point onwards.

23 As a result, the documents that were identified in the Defence

24 submission do not correspond with the position that the Defence had taken

25 in respect of a small number of documents. And it follows that when Your

Page 4591

1 Honour has ruled in principle in relation to those 99 documents that are

2 agreed and invited Madam Registrar to refer to the Defence pleading for

3 the detail, if she were to do that as it stands today, she would receive

4 erroneous passages from certain passages for the Defence pleading, for

5 which I take responsibility.

6 By tomorrow there will be a corrigendum correcting the position,

7 and I think the anomaly that Your Honour had identified will smooth itself

8 out once that corrigendum is filed.

9 JUDGE ORIE: My instruction to the extent Madam Registrar has not

10 already done the job is expended for the time being. We'll wait for your

11 further submissions.

12 MR. EMMERSON: It doesn't in any way change the substance of Your

13 Honour's ruling or the issue between the parties; it's simply a question

14 of numbers.

15 JUDGE ORIE: Yes. If we would continue now that the trial would

16 be at risk to become the comedy of errors or tragedy of errors, whatever

17 way you would look at it. If there's no urgent matter further to be

18 addressed at this moment, we will adjourn until tomorrow, 9.00, in this

19 same courtroom where we'll continue to hear the evidence to be given by

20 Mr. Crosland.

21 We stand adjourned.

22 --- Whereupon the hearing adjourned at 12.24 p.m.,

23 to be reconvened on Wednesday, the 23rd day of

24 May, 2007, at 9.00 a.m.