Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8729

1 Tuesday, 2 October 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.20 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

8 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

9 versus Ramush Haradinaj et al.

10 JUDGE ORIE: Thank you, Mr. Registrar. I first would like to

11 inform the parties that since I yesterday had failed to instruct the

12 witness not to speak with anyone about his testimony, with the assistance

13 of one of our interpreters I told the witness just outside the court not

14 any other thing but just the instruction as I usually give to witnesses.

15 This is just that it be on the record.

16 Then, Mr. Hasanaj, I would like you -- to remind you that you're

17 still bound by the solemn declaration you gave at the beginning of your

18 testimony yesterday, that is that you'll speak the truth, the whole truth,

19 and nothing but the truth.

20 Mr. Re, you indicated yesterday that you might have concluded your

21 examination-in-chief, but not for certain.

22 MR. RE: I have a few moments -- a few minutes left.

23 JUDGE ORIE: A few minutes left.

24 MR. RE: Yes.

25 JUDGE ORIE: Mr. Hasanaj, Mr. Re will continue his examination.

Page 8730

1 Please proceed Mr. Re.


3 [Witness answered through interpreter]

4 Examination by Mr. Re: [Continued]

5 Q. Good afternoon, Mr. Hasanaj. There's just a few matters I want to

6 ask you about your --

7 A. Good afternoon.

8 Q. Good afternoon. About your evidence yesterday.

9 In your -- excuse me.

10 Yesterday you were explaining to the Trial Chamber that there was

11 this expression, an Albanian expression, you called it a wise

12 saying: "The children eat the fruit in the trees and the parents get sore

13 teeth."

14 Yesterday the Judge in the middle, Judge Orie, asked if you could

15 provide a -- an explanation of what it means so that everyone in the court

16 knows what this Albanian saying means.

17 A. Yes. I said that, and I meant my son, who at that moment went

18 there, and because of that I have these challenges in front of me. I

19 have -- I had to come here to this courtroom and testify. That's what I

20 meant. Because if my son had not been there to see what he saw, Mr. Balaj

21 would have known himself who that person was, and he knows today.

22 MR. RE: Does that satisfactorily explain it to the Trial Chamber?

23 JUDGE ORIE: Yes. I asked yesterday -- one of the interpreters,

24 as a matter of fact, gave me an explanation spontaneously after court and

25 said that the origin of this saying is that children starting picking and

Page 8731

1 eating fruit when they're not ripe yet, that then the parents, of course,

2 have to deal with the sore teeth of the children as a consequence of their

3 behaviour. That's how it was explained to me, and I think the matter has

4 been sufficiently dealt with. The witness explained what it meant to him,

5 and this seems to be the background of this saying.

6 You understood what I just said? That's your understanding as

7 well of the origin of this saying?

8 THE WITNESS: [Interpretation] Yes. Yes.

9 JUDGE ORIE: Please proceed, Mr. Re.

10 MR. RE: Can we just display a section of the statement in

11 Sanction, please.

12 Q. In your statement, you referred to -- this is at paragraph 20, a

13 person called Ahmet Ukaj being concerned and distressed and telling you

14 that Galani was one of the persons in the forest who had killed a woman.

15 That's the woman we now know is Sanije Balaj. My question is simply

16 this: Are you related to Ahmet Ukaj? And if so, what is your

17 relationship?

18 A. We are cousins. We are from the same village, from Vranoc e

19 Vogel. And at that moment, we went together there. And he was protecting

20 my son when we went there, because he was afraid that somebody would

21 shoot. And I think he stayed there about an hour after I left. And after

22 he came back to me, he was very distressed and said those words to me.

23 Q. And the same with in paragraph 17, you referred to Hysen Ukaj and

24 Sokol Tolaj. Is Hysen Ukaj also one of your cousins and what is his

25 relationship to Ahmet Ukaj?

Page 8732

1 A. Hysen Ukaj is a close relative to Ahmet. To me they're the same

2 approximately, and they are from the same village as me. Sokol Tolaj was

3 somebody who had left his village because of the war and had come to live

4 in our village. I went home with Sokol and Hysen and Ahmet stayed behind.

5 Q. And also in your statement at paragraph 22, you refer to

6 understanding that Shaban Balaj, who testified yesterday, went to the

7 house of Mete Krasniqi and the Balaj family told Mete, "You are the one

8 who took the girl. I am telling you to bring her back."

9 Mete Krasniqi, is he deceased?

10 A. Mete Krasniqi died after the war and the Balaj family and

11 Shaban Balaj himself went to Mete Krasniqi and asked for the body of his

12 sister to be given to him.

13 Q. Yesterday I asked you about the Serb attack on your village on the

14 29th of May, and I asked you how many were on either side; that is, the

15 Serbian side and the KLA side. And you said: "We were very few in

16 numbers."

17 I just want you to, if you can - I know it's been a long time -

18 tell the Trial Chamber approximately how few you mean by "very few in

19 numbers."

20 A. I already said this yesterday, and maybe you misinterpreted it. As

21 I said, there were very few of us and we were not mobilised to put up a

22 resistance against the Serbs. There were very few of us as members of the

23 KLA, and our main concern was for our families to get to a safe place as

24 soon as possible.

25 Q. I'm just after numbers. When you say "very few," are you talking

Page 8733

1 about five, ten, fifteen? 100, 200? Three people? Just approximately,

2 how many KLA fighters were there?

3 A. I can't remember. I couldn't give you an exact figure. I suppose

4 the Court would like an exact figure, but I cannot give you one.

5 We were about ten, fifteen. We just wanted to leave to go to a

6 safe place.

7 Q. And what were the ten/fifteen of you armed with?

8 A. We had light weapons. Somebody had a semiautomatic rifle.

9 Somebody else a Kalashnikov. Simple light weapons. What could we do with

10 those kinds of weapons?

11 Q. Do you remember whether you had uniforms?

12 A. I did not have a uniform. Other people did.

13 Q. I want to clarify one of your answers yesterday. In describing

14 what the Serbs did, you said: "They set fire to the village. More than

15 half the houses in the village. They killed some, as I said. They killed

16 livestock. They destroyed everything they could. As I said, four persons

17 were burned."

18 Now, what we've got written down is you said four persons were

19 burned. Are you referring to houses or people?

20 A. Not houses but people were charred in the houses that got burned.

21 Three were burnt and one of them was killed by a shell launched by a tank.

22 He was in the forest in Lugu i Isufit. That's where he was killed. His

23 name was Imer Kukaj [phoen].

24 Q. How many military casualties were there on either side? That is,

25 KLA side or Serbian side?

Page 8734

1 MR. GUY-SMITH: Well, I think the --


3 MR. GUY-SMITH: -- characterisation of KLA side and military

4 casualties may be too much. You can speak about how many casualty there

5 is were and get further definition there, but question is --

6 JUDGE ORIE: Yes. Perhaps on your side and the other side.

7 MR. GUY-SMITH: Thank you.

8 JUDGE ORIE: If that would do, Mr. Re. There may have been more

9 parties involved. I think it would have been understood this way.

10 But casualties -- could you tell us about the number of

11 casualties.

12 THE WITNESS: [Interpretation] On our side, the Albanian side,

13 there were four casualties. Three were burnt in their own homes, and the

14 other one, the fourth one, was killed. But there were other damages as

15 well caused in livestock and crops. I don't know about any casualties on

16 the part of the Serbs. We could not know, because we could not go to them

17 or approach them and ask them.

18 MR. RE:

19 Q. The four people who were killed, were they fighters for the KLA or

20 were they civilians?

21 A. None of them were KLA fighters. All of them were civilians. One

22 woman and three men.

23 Q. I want to show you two photographs and ask you whether you can

24 identify the area shown in the two photographs.

25 Can the witness firstly be shown 65 ter 2070 at page 2.

Page 8735

1 Can you see the photograph clearly on the screen, or do you want

2 me to give you a -- a copy of the photograph in hard copy?

3 A. I can see it, yes.

4 Q. Do you recognise that?

5 A. I think this is the place where the attack on Vranoc occurred.

6 It's the hill, I think.

7 Q. Is this the area of Lugu i Isufit where you went with your

8 relatives on the day that Sanije Balaj was killed? Is that area shown in

9 this photograph?

10 A. Yes, it is. It's that area, yes. Not the hill that I mentioned

11 earlier, because the hill was the place where the Serbs were positioned.

12 This is the part called Zarki Pojas.

13 [Trial Chamber confers]

14 MR. RE: May that be received into evidence.

15 JUDGE ORIE: Mr. Registrar.

16 THE REGISTRAR: That's P925, Your Honours.

17 JUDGE ORIE: Thank you.

18 No objections?

19 Then it's admitted into evidence.

20 Please proceed.

21 MR. RE:

22 Q. The second photograph I'm going to show you is 65 ter 2070, page

23 1. That, too, will come up on the screen.

24 In your statement, you referred to a water spring in the area of

25 Lugu i Isufit. Does that photograph show the water spring which you

Page 8736

1 referred to in your statement, which was in the area around near where

2 Sanije Balaj was killed?

3 A. You can't see the exact water spring, but this is the area. This

4 is the area.

5 MR. RE: May that also be received into evidence.

6 JUDGE ORIE: Would there be any objection against having them

7 together under one exhibit number?

8 MR. RE: Not from the Prosecution.

9 JUDGE ORIE: Any objection?

10 Then this photograph will join the other one, which was, as far as

11 I remember, P925. Two photographs now in P925, both admitted into

12 evidence.

13 MR. RE: That's the evidence in chief.


15 Mr. Emmerson, are you ready to cross-examine the witness?

16 MR. EMMERSON: Your Honour, I am.

17 JUDGE ORIE: Then, Mr. Hasanaj, you'll now be cross-examined first

18 by Mr. Emmerson, who's counsel for Mr. Haradinaj.

19 Please proceed, Mr. Emmerson.

20 Cross-examination by Mr. Emmerson:

21 Q. Mr. Hasanaj, I have one or two questions for you from this side of

22 the courtroom.

23 JUDGE ORIE: Mr. Hasanaj, perhaps you'll look at Mr. Emmerson

24 who's standing there, who's putting the questions now.


Page 8737

1 Q. Good afternoon. Just one or two questions for you, if I may,

2 please.

3 Your village was Vranoc e Vogel; is that right?

4 A. Yes.

5 THE INTERPRETER: Could the witness be asked to sit closer to the

6 microphone, please.

7 JUDGE ORIE: Madam Usher, could you assist the witness and ...

8 Could you please come closer to the microphone.


10 Q. And the other village of Vranoc or with the name of Vranoc was

11 called Vranoc e Madhe, M-a-d-h-e; is that correct?

12 A. Yes.

13 Q. Din Krasniqi, did he live in Vranoc e Vogel or Vranoc e Madhe?

14 A. In Vranoc e Madhe.

15 Q. Do you know a man called Cufe Krasniqi or did you at the time know

16 a man called Cufe Krasniqi?

17 A. Yes.

18 Q. Thank you. Now, yesterday you testified - and I'm looking at page

19 8720, line 17 for those who are following - you gave evidence yesterday in

20 these terms. You said: "Ramush Haradinaj didn't appoint Din Krasniqi.

21 It was the people who elected him."

22 And we have heard some evidence, as you know, from Shaban Balaj to

23 the same effect. We've also heard testimony from a man called

24 Cufe Krasniqi that it was he who suggested Din Krasniqi as commander. Do

25 you remember the process of election in the villages by which Din Krasniqi

Page 8738

1 came to be elected?

2 A. I told you yesterday that I am from Vranoc e Vogel, Deqan

3 municipality. However, I joined the Vranoc e Madhe staff later on, when

4 Din Krasniqi was elected. Din Krasniqi was elected commander of the

5 village at that time.

6 Q. And he was elected, was he, by the local villagers from the

7 area --

8 A. Yes, from the villagers.

9 Q. Thank you. Now, there's just one other topic I wanted to clarify

10 with you briefly, if I may, and it relates to the account that your son

11 Durim gave you on the day that you went to the area of Lugu i Isufit.

12 Now, in your witness statement in this case, you've described how

13 you came home that day and spoke first to your wife and then to your son

14 about what it is that your son had witnessed; correct?

15 A. Correct.

16 Q. Now, I just want to be clear about one detail. We have a witness

17 statement that your son Durim made to the Prosecution about this, in which

18 he describes having seen not one man and a woman out of a car but two men,

19 both out of the car, trying to force the woman out. And I see in your

20 witness statement at paragraph 16 you say in terms that the boy told you

21 that on their way back, they saw two men with a woman and that he had seen

22 the two men forcing the woman out of the vehicle. Is that your

23 recollection?

24 A. That's correct.

25 Q. Yes. Yes, thank you.

Page 8739

1 MR. EMMERSON: Those are my questions.

2 JUDGE ORIE: Thank you, Mr. Emmerson.

3 One question for you. Did I miss something you said? That the

4 witness would be -- know that Shaban Balaj gave evidence to the same

5 effect? I missed why this witness would --

6 MR. EMMERSON: No, I'm sorry -- sorry, what I was indicating was

7 that the witness -- this witness would know that Shaban Balaj had

8 testified.

9 JUDGE ORIE: Yes. Yes, so not covering the whole of it.


11 JUDGE ORIE: Another way of that, but That is --

12 MR. EMMERSON: I think that because he made reference in his

13 evidence in chief to the fact that we had heard from Shaban Balaj.

14 JUDGE ORIE: Yes. Then that has been -- is on the record now.

15 Mr. Guy-Smith.

16 Mr. Guy-Smith is Defence counsel for Mr. Balaj, Mr. Hasanaj, and

17 he'll now put further questions to you.

18 Cross-examination by Mr. Guy-Smith:

19 Q. Good afternoon, sir.

20 A. Good afternoon.

21 Q. I have but a few questions to ask you, and they relate to the

22 testimony you gave yesterday. You said yesterday that you knew that Idriz

23 Balaj had been gaoled for the first time, and my question to you is: Is

24 that as a result of the trial in Kosovo in 2002, the Dukagjin trial?

25 JUDGE ORIE: Do you receive interpretation, Mr. Hasanaj? Because

Page 8740

1 I --

2 THE WITNESS: [Interpretation] Yes.

3 JUDGE ORIE: Yes. Could you please answer the question whether--

4 THE WITNESS: [Interpretation] I didn't know Idriz Balaj before,

5 but after the war I heard that Idriz Balaj and Togeri are one and the same

6 person, and this is what I stated in my statement. But I didn't know him,

7 nor did I ever meet him, so I know nothing about him.

8 MR. GUY-SMITH: Thank you very much. 1-6R7B8G9 is that --

9 JUDGE ORIE: Is that -- is that an answer to your question,

10 Mr. Guy-Smith?

11 MR. GUY-SMITH: It's not directly an answer to my question. I can

12 get the answer to the question too. In addition, I think that probably --

13 probably resolves it, but I can ask the -- the question again.

14 JUDGE ORIE: Yes. Because --

15 MR. GUY-SMITH: Sure. No problem.

16 JUDGE ORIE: I'm left with a puzzlement.

17 MR. GUY-SMITH: No problem.

18 Q. After the war, Mr. Balaj was involved in a trial in Dukagjin. Are

19 you aware of him being involved in that trial?

20 A. I only heard that he was in gaol. I don't know more than that.

21 Q. And when you had indicated yesterday -- when you said yesterday

22 after he was in gaol the first time, you were referring to him being in

23 gaol as a result of what happened at the Dukagjin trial; correct?

24 A. Correct. Certainly.

25 MR. GUY-SMITH: Thank you once again.

Page 8741

1 JUDGE ORIE: Thank you, Mr. Guy-Smith.

2 Mr. Harvey.

3 MR. HARVEY: I have no questions for this witness. Thank you.


5 Mr. Re, any need to put further questions to the witness?

6 MR. RE: Yes. There's just one matter in re-examination.

7 JUDGE ORIE: Yes. I would like to perhaps first seek a

8 clarification on another matter, so that you can include that. I don't

9 know whether there's any need to that at all.

10 Questioned by the Court:

11 JUDGE ORIE: Mr. Hasanaj, the Chamber has read your statement.

12 There's a tiny little matter I'd like to ask you about. In paragraph 2 of

13 your statement, you said: "We considered ourselves to be KLA but we did

14 not have a commander as such. We obtained a few weapons as well as some

15 military attire with the KLA insignia for the first time when a

16 headquarters was established in Vranoc e Madhe around the 15th of April,

17 1998."

18 You also said in paragraph 3 of your statement: "We obtained

19 weapons for the first time when I sent two people from my village along

20 with another seven or eight others from Vranoc e Madhe to Albania."

21 So you describe -- and you say that that was sometime after the

22 Serb attack on your village on the 29th of May. So you say for the first

23 time you obtained weapons at the end of March, a few weapons, and then you

24 said for the first times we got weapons from Albania but then you say this

25 was after the attack on the 29th of May.

Page 8742

1 Now, I understood your statement to say that you got a few weapons

2 for the first time in March 1998 and then that after the 29th of May, you

3 for the first time got a larger quantity of weapons which is described in

4 your statement, coming from Albania, where you sent several people.

5 Is that correctly understood?

6 A. Yes, it's correct. It's true.

7 Do you want me to explain it further?

8 JUDGE ORIE: No, if -- if -- of course, I was puzzled by "the

9 first time", which you used two times, and of course "the first time" can

10 only be once. Therefore I understood "the first time" initially to say

11 just a few weapons; and "the first time" in paragraph 3 to say the first

12 time that we went to gather weapons from Albania and then you describe

13 that this was a Kalashnikovs, mortars, anti-attack rocket, sniper rifles.

14 Is that how I have to understand your statement?

15 A. Yes.

16 JUDGE ORIE: Thank you for this clarification.

17 Mr. Re.

18 Re-examination by Mr. Re:

19 Q. Mr. Hasanaj, I just want to ask you to clarify something in

20 relation to a question Mr. Emmerson over there asked you. Now, he asked

21 you about the local villagers electing Din Krasniqi.

22 Can you just refer to your statement, paragraph 4 in your

23 statement there. Can that please be displayed in English in Sanction

24 while the witness looks at his hard copy there.

25 You can see the second sentence in paragraph 4, where you said

Page 8743

1 that "Ramush came to announce the appointment of Din Krasniqi as the

2 commander of that area in mid-April." And then you say: "Three

3 representatives had been sent from our village to Gllogjan to ask Ramush's

4 approval for this appointment."

5 Now, was the reason for their going to Gllogjan, is that in the

6 next sentence, where it says: "Ramush was understood to be the zone

7 commander of Dukagjini Valley, meaning that he gave orders to the

8 commanders of the villages"?

9 A. Maybe I just guessed. I don't remember it very accurately. I

10 only know that Din Krasniqi was elected by the co-villagers and that that

11 is the Peje commune. The three people that went there, this is something

12 that I heard about. I heard that three people had gone to

13 Ramush Haradinaj. As to whether they met him or not and how the question

14 of Din Krasniqi was resolved, this I'm not sure.

15 Q. Can you remember who those three people were?

16 A. The three persons ... I don't remember. I don't remember at all

17 who they were. I think maybe -- I'm just guessing: Xhevdet Krasniqi,

18 Din, and someone else that I don't know. .

19 Q. When you said you heard that three people had gone to Ramush

20 Haradinaj, did you hear that at the time -- at around the time that

21 Din Krasniqi was made the commander?

22 A. Din Krasniqi became the commander and then of course we all

23 suppose that this was done with the approval of Ramush. But I wasn't

24 there. I didn't see anything. To speak the truth here, I wasn't there,

25 present.

Page 8744

1 Q. Thank you, Mr. Hasanaj.

2 JUDGE ORIE: Any need to put further questions to the witness?

3 Mr. Hasanaj, this concludes your evidence in this court. I would

4 like to thank you for coming a long way to The Hague and to answer the

5 questions of both parties and the Bench, and I wish you a safe trip home

6 again.

7 Madam Usher, could you escort Mr. Hasanaj out of the courtroom.

8 THE WITNESS: [Interpretation] I would like to thank you,

9 Your Honours. I would like to thank the International Tribunal and hope

10 that justice will be done and that the innocent people will be redressed.

11 If I am not doing anything wrong with the talk -- with the words I just

12 said.

13 JUDGE ORIE: What the Chamber would expect someone if justice is

14 done, that the guilty will be punished and that those not guilty will be

15 acquitted. That's what this Chamber, of course, is seeking to achieve.

16 Thank you. I appreciate your words. You may follow Madam Usher.

17 THE WITNESS: [Interpretation] Thank you.

18 [The witness withdrew]

19 JUDGE ORIE: Mr. Re, do I understand that your next witness is not

20 yet available but will be available tomorrow?

21 MR. RE: Professor Lecomte can only come tomorrow. She's

22 testifying in a trial in Paris today.

23 JUDGE ORIE: Yes. Yes. We are not in a competition with French

24 courts.

25 That means that you have plenty of time to further see to agree

Page 8745

1 with the Defence on the 92 ter statement for next Thursday, I take it.

2 Mr. Emmerson.

3 MR. EMMERSON: Yes, I'll make it absolutely clear for the purposes

4 of the record. I don't anticipate substantial measures of agreement, and

5 I think all parties on this side of the room will be seeking a formal

6 ruling from the Trial Chamber.

7 JUDGE ORIE: Yes. As far as, of course -- 92 ter statements,

8 usually a decision is taken once they have been tendered. But the Chamber

9 will certainly prepare for a -- for that situation, on the basis of the 92

10 ter statement and the annexes attached to it. It's quite a lot of work.


12 JUDGE ORIE: The Chamber is aware of that. We are doing our

13 utmost best.

14 And if the 7.00 in the morning sessions or 10.00 at night sessions

15 would serve any purpose here, the Chamber will let you know, and in view

16 of the amount of material, it might even be 9.00 in the evening or 6.00 in

17 the morning sessions. I don't know. We have to --

18 MR. GUY-SMITH: I would just --

19 JUDGE ORIE: -- study it more thoroughly before we express any

20 view on whether this would serve any purpose at this point.

21 MR. GUY-SMITH: I would suggest that the present state of

22 agreement between the parties, 4.00 in the morning might be more

23 appropriate. I have a sneaking suspicion there's going to be no agreement

24 here, Your Honour. Just so you know.

25 MR. EMMERSON: Well, I think, if I may say so, the reason why we

Page 8746

1 chose to approach this in the formal way in which we did to the filing of

2 the motion was because it raises an issue which has been skirted around in

3 relation to a number of witnesses up until now where documents have been

4 put forward and then withdrawn or put forward and clarification has been

5 given that they're not being tendered as evidence of the truth of their

6 contents but where the Prosecution has reserved the position that it may

7 seek in due course to argue a different position. And -- and we do

8 respectfully submit that this proposed evidence raises an issue of

9 principle that needs to be formally resolved so that all parties can

10 review the ruling and consider their position in the light of it.


12 MR. EMMERSON: I just want to --

13 JUDGE ORIE: I do understand that. At the same time, I take it

14 that the Defence is well aware by now that often the Chamber finds it

15 premature to give final determinations on whether or not certain material

16 is admissible because the evidence, of course, is viewed at in its

17 entirety. And since the Chamber does not know what evidence there still

18 will be there, that sometimes it's difficult to give a -- a final ruling

19 already on admission, rather than --


21 JUDGE ORIE: -- reserve the Chamber's position as to how to

22 evaluate and how to give weight to that evidence.

23 But we'll certainly --

24 MR. EMMERSON: May --


Page 8747

1 MR. EMMERSON: May I say that I think it should be reasonably

2 apparent from the motion that in this particular instance, we're urging

3 the Trial Chamber to take a more robust approach because we respectfully

4 submit that it is possible and necessary to impose a measure of

5 intellectual discipline over the basis upon which this material is sought

6 to be tendered, because as it seems to us from the way in which the

7 statement is put together and the annexes appended to it, this material

8 must be being tendered, since no other reason is put forward, as being

9 material that the Trial Chamber could and should in due course have

10 available to it amongst the pool of material which is tendered as evidence

11 of the truth of its contents, and we respectfully submit that that is not

12 a permissible approach in respect of these materials and that is why, as I

13 say, we -- we urge the Trial Chamber to look closely and invite the

14 Prosecution to identify precisely the basis upon which each and every

15 document is put forward.

16 JUDGE ORIE: Yes. Mr. Emmerson, there could be no doubt as --

17 what is expressed in these 3.200 words in your submission. The Chamber is

18 fully aware of that.

19 We'll consider the matter.

20 At the same time, Mr. Re, you are now aware of the objections

21 raised. If this would lead you in any way to withdraw portions of the

22 evidence -- I'm not suggesting that you would be inclined to do so, but if

23 that would be the case, then, of course, it would assist the Chamber to be

24 aware of that.

25 MR. RE: The Prosecution is, of course, always open to negotiation

Page 8748

1 and -- and would, of course, take a reasonable course, but the

2 Trial Chamber has to be very aware here. The louder the objection by the

3 Defence to a statement and its annexes, the more likely it is to be

4 incriminatory and relevant and provide persuasive evidence against the

5 accused. In this particular case, the Defence have -- of Mr. Haradinaj,

6 in any case have tendered or produced a 53-page filing going into great

7 detail as to why what we say is highly relevant, probative and

8 contemporaneous evidence against the three accused should not be tendered.

9 Now, you've got to ask yourselves why they've gone to so much

10 effort and trouble to try and suppress this relevant and probative

11 evidence against the three accused. And the evidence here --

12 JUDGE ORIE: Well, let's try not to -- I take it that the Defence

13 seeks to take care of the interest of the accused as good as they can, I

14 mean, in these procedures.

15 MR. EMMERSON: Well, I take it one stage further.

16 JUDGE ORIE: And any suggestion as to -- I mean, one of the things

17 you did mention, Mr. Re -- but, of course, that seems to be not subject

18 for negotiations but, rather, a matter of principle -- that is,

19 reliability of evidence which cannot be tested. That's at least how I

20 understand the position of the -- of the Defence.

21 MR. EMMERSON: As --

22 MR. RE: We well understand that.

23 JUDGE ORIE: Okay.

24 MR. RE: The position is that everything which we have selected

25 and put -- and attached to Mr. Stijovic's statement -- and let us not

Page 8749

1 forget that he was the chief analyst for the Serbian Secret Service in

2 Kosovo at the relevant time and they were receiving information from

3 across Kosovo, from within the KLA.

4 JUDGE ORIE: Yes. That's --

5 MR. RE: Et cetera. The reason why we have selected this

6 particular information is because it is corroborative of the allegations

7 in the indictment and of evidence the Trial Chamber has already heard.

8 The objection the Defence is taking is as to their inability to

9 test the maker of each of the statements in which some evidence is put in

10 the -- in the annexes.

11 Now, we -- we do, of course, recognise that, but we say that it is

12 corroborative and once the pattern is built, there's a cumulative effect

13 which when put together corroborates the Prosecution case.

14 We, of course, understand that we cannot say that you can rely 100

15 per cent on everything in those annexes as the truth. However, when you

16 take it with all the other pieces of information, the military orders, the

17 statements, evidence you've heard in this -- in this trial, you can put it

18 together. It has a cumulative effect, a corroborative effect, and the

19 Trial Chamber can give it the appropriate weight.

20 We don't say for one second that you can rely 100 per cent on

21 everything that is in those statements. It's the jigsaw. It's the -- the

22 pattern. It's putting it all together. And that's where we stand.

23 JUDGE ORIE: I think the positions are -- the positions are

24 perfectly clear that --

25 MR. GUY-SMITH: I don't think it -- excuse me.

Page 8750


2 MR. GUY-SMITH: I don't think it -- nor did I contemplate that we

3 were going to be arguing this motion at this time, but once again, based

4 on the remarks just made by Mr. Re, I would urge him to define and

5 articulate for the Chamber those annexes upon which the Prosecution relies

6 on for purposes of their truth. I think that would, in many senses, be

7 quite fruitful and quite helpful with regard to any potential negotiations

8 that could occur independent of the underlying and important issues

9 concerning what is reliable or not reliable from the standpoint of

10 admissibility.

11 MR. EMMERSON: Might just briefly respond?


13 MR. EMMERSON: I don't seek the respond to the general point that

14 Mr. Re sought to make that the making of objections by the Defence to

15 material of this kind is somehow an indication that it is probative; quite

16 the reverse.

17 JUDGE ORIE: Mr. Emmerson, don't worry about that.

18 MR. EMMERSON: No, I shan't -- I shan't, if I may say so.

19 JUDGE ORIE: The Chamber is certainly in a position to interpret

20 these kinds of observations, whether they come from the Defence or from

21 the Prosecution.

22 MR. EMMERSON: But may I say simply this: That the remark that

23 Mr. Re makes about corroboration is an excellent example of why this is

24 essential that this matter be dealt with by a formal exchange of pleadings

25 under ruling because I am aware because I have studied as much of the

Page 8751

1 material as time has permitted, that there is material that is cited and

2 relied upon there that is very far from being corroborative, that may

3 relate to individuals who are named as victims on the indictment, but it

4 provides in the Prosecution's case theory an explanation of the

5 circumstances in which they allegedly met their death, which is quite

6 absent from the testimony that can be tried and tested in these

7 proceedings.

8 And for the Trial Chamber to reach a judgement on admissibility of

9 this material, there has, in our submission, to be an evaluation of its

10 reliability and probative weight, and that's not something that one can

11 do, unless or until the Prosecution properly responds and indicates how

12 and why it says that, for example, a clutch of more than 10 or 12 records

13 of interviews with anonymous witnesses or with named witnesses who are

14 recorded as being unreliable is material on which the Trial Chamber can

15 properly rely. And the general jigsaw puzzle suggestion is really An

16 invitation to the Trial Chamber to say, Never mind the quality - feel the

17 width, as the English expression goes. In other words, three unreliable

18 indications together amount to a material on which the Prosecution can

19 properly rely.

20 JUDGE ORIE: Yes. I mean, it's common knowledge that -- I'm not

21 saying that it is, but a chain is as good as its weakest part.

22 MR. EMMERSON: I mean, my main concern is procedural here, is --

23 is that -- I entirely understand the general approach that the Trial

24 Chamber takes to evaluating material at the end of the day, but there

25 is -- the -- really the main thrust of Mr. Stijovic's proposed testimony

Page 8752

1 is to come before the Tribunal and summarise witness statements, very few

2 of which he says he saw at the time, none of which he took, and all of

3 which he seeks to put forward before the Trial Chamber through summary

4 form, as evidence of the truth of its contents. And we really do

5 respectfully submit that a line needs now to be drawn.

6 JUDGE ORIE: Yes. The positions are clear.

7 Mr. Re.

8 MR. RE: Yeah. Mr. Guy-Smith invited us to articulate and define

9 the annexes of which the Prosecution relies on for the purposes of their

10 truth.

11 There are some which we clearly say we rely upon for their -- for

12 their truth, such as every KLA communique in which they have admitted to

13 murdering Serb collaborators and --

14 MR. EMMERSON: There's no objection to the KLA communiques.

15 MR. RE: Now, but --

16 JUDGE ORIE: So there's a fruitful basis already for --

17 MR. RE: But there is an objection.

18 JUDGE ORIE: And I saw that --

19 MR. EMMERSON: The objection doesn't extend to those documents.


21 MR. RE: It says -- the objection, for example, says it does not,

22 however, establish the authenticity of the alleged communique or the truth

23 of the contents. We say it is true, and especially when Mr. Stijovic

24 testifies in his statement, "Yes, I was there. I read reports at the time

25 and in fact, I knew two of the people who were killed by the KLA in that

Page 8753

1 particular incident."

2 Of course we're putting that forward as a true communique issued

3 by the KLA to say they killed people. Of course it is. And there's a lot

4 of documents in that category.

5 JUDGE ORIE: Yes. I suggest that the parties, who have some

6 additional time available this afternoon, try to find out to what extent

7 there could be any agreement on whatever little matter. Of course, the

8 Chamber would prefer larger matters, but -- and the Chamber will spend

9 time as well on studying this material.

10 This witness will appear on Thursday, which leaves us one day and

11 a half to see to what extent the parties can resolve the matter, and what

12 is not resolved by the parties but be resolved by the Chamber in whatever

13 way.

14 Mr. Guy-Smith.

15 MR. GUY-SMITH: Yes. I wish to alert the Chamber to another issue

16 that might arise. We have heard, I believe at least twice thus far, that

17 Professor Lecomte is available for testimony only tomorrow as a result of

18 being involved in another trial.

19 We received yesterday a -- a fair amount of disclosure, some

20 600-plus pages of disclosure with regard to Professor Lecomte, of which

21 250, I believe, are in French. I don't know whether or not that is going

22 to cause any difficulties with regard to the examination of Lecomte

23 tomorrow or not. And by that I mean whether or not we may need to have

24 her come back at a later time. However, I don't think we will have any

25 difficulty, at least proceeding with her tomorrow. But I wanted to alert

Page 8754

1 the Chamber that there may be a need for her to come back at a later time.

2 JUDGE ORIE: Yes. That's on the record.

3 Then I would like to inform the parties before we adjourn that the

4 Chamber at this moment is considering to have a housekeeping session on

5 the 25th of October. That is, after the UN holiday on the 24th and the

6 day before the 26th, a Friday, in which we usually do not sit. So the

7 25th, as far as the Chamber has in mind at this moment, would be reserved

8 for a housekeeping session.

9 If there's no other procedural matter, we'll resume until

10 tomorrow, the 3rd of October, quarter past 2.00, same courtroom, number I.

11 --- Whereupon the hearing adjourned at 3.12 p.m.,

12 to be reconvened on Wednesday, the 3rd day of

13 October, 2007, at 2.15 p.m.