Tribunal Criminal Tribunal for the Former Yugoslavia

Page 420

 1                           Tuesday, 23 August 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.01 a.m.

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.

 7             Madam Registrar, will you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

10     Lahi Brahimaj.

11             JUDGE MOLOTO:  Thank you so much.

12             Could we have appearances for the day, please, starting with the

13     Prosecution.

14             MR. ROGERS:  Yes, Your Honours.  Good morning, Paul Rogers

15     appearing for the Prosecutor together with Ms. Priya Gopalan and our case

16     manager, Ms. Line Pedersen.

17             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

18             Yes, Mr. Emmerson.

19             MR. EMMERSON:  Ben Emmerson for Ramush Haradinaj, together with

20     Rod Dixon, Annie O'Reilly, and Andrew Strong.

21             JUDGE MOLOTO:  Thank you so much.

22             And for Mr. Balaj.

23             MR. GUY-SMITH:  Good morning, Your Honours.  Gregor Guy-Smith,

24     Colleen Rohan, Chad Mair, and Gentian Zyberi on behalf of Mr. Balaj.

25             JUDGE MOLOTO:  Thank you so much, Mr. Guy-Smith.

Page 421

 1             Mr. Harvey.

 2             MR. HARVEY:  Good morning, Your Honours.  Richard Harvey on

 3     behalf of Lahi Brahimaj, assisted by Mr. Paul Troop, Ms. Sophie Rigney,

 4     and Ms. Rudina Jasini.  Thank you.

 5             JUDGE MOLOTO:  Thank you so much.

 6             Mr. Rogers.

 7             MR. ROGERS:  Your Honours, what I propose we do this morning in

 8     relation to this witness is to bring him back in, see whether there's

 9     been any change of heart over the evening adjournment.  It's quite

10     possible that he may have reflected upon his position and now be more

11     willing to answer questions.  It may be that he isn't.  We don't know.

12     We have to wait and see.  And then depending upon how he responds, I may

13     take a further course of action which I've alerted my friends in relation

14     to as to whether to treat him as an adverse witness.  But we'll wait and

15     see how he develops this morning.

16             Now, unless my learned friends wish to object to that course of

17     action, I rather we had the argument about it now than have any argument

18     in front of the witness whilst he's sitting listening.

19             JUDGE MOLOTO:  Well, we don't have an application by you yet,

20     Mr. Rogers, so we will not have an argument now.  We will have an

21     argument when you make the application.

22             MR. ROGERS:  I don't mean a hostile witness application.  I just

23     indicate that's the way that I'm -- I want to bring him in, see where we

24     go and then we'll take it from there.  And if my learned friends want to

25     object to that perhaps they can say so now.

Page 422

 1             MR. EMMERSON:  Your Honour, obviously we would want to be heard

 2     before any application were made to treat the witness as hostile, but

 3     that's not a submission that needs to be addressed to the Bench now.

 4             As regards stage one, that is to say, Mr. Rogers' intention to

 5     attempt continue to examine the witness, I make it absolutely clear,

 6     there could come a point quite quickly at which I object to that

 7     procedure continuing but I don't object to it beginning.

 8             MR. GUY-SMITH:  I actually take a slightly different view from

 9     Mr. Emmerson here, which is based on the state of the record as I

10     understand it from last night.  The witness has made himself clear and if

11     Mr. Rogers is going to ask if he has a change of heart as he put it, and

12     proceed from that basis to make a determination about what he's going to

13     do, whether or not he's going to make an application or not, I have no

14     objection.  If Mr. Rogers is going to engage in the same kind of

15     behaviour that he engaged in yesterday without asking that initial

16     question, then I do have an objection.

17             MR. HARVEY:  On the assumption that Mr. Rogers simply asks the

18     witness whether he has had a change of heart and whether he wishes to

19     answer questions and the answer remains the same and it's taken no

20     further than that, then I have no objection.

21             JUDGE MOLOTO:  Mr. Rogers, prosecute your case.

22             MR. ROGERS:  Thank you.  I wouldn't want it to be taken that I

23     agree with either Mr. Guy-Smith or Mr. Harvey that my examination should

24     be restricted in the way they seek to restrict it.  It's a matter for me

25     how I --

Page 423

 1             JUDGE MOLOTO:  Prosecute your case, Mr. Rogers.

 2                           [The witness takes the stand]

 3             JUDGE MOLOTO:  Good morning, Mr. Kabashi.  You may be seated.

 4             THE WITNESS:  Good morning.

 5             JUDGE MOLOTO:  Mr. Kabashi, just to remind you that you are still

 6     bound by the solemn declaration that you made at the beginning of your

 7     testimony yesterday to tell the truth, the whole truth, and nothing else

 8     but the truth.

 9             Mr. Rogers.

10             MR. ROGERS:  Your Honour.

11                           WITNESS:  SHEFQET KABASHI [Resumed]

12                           [Witness answered through interpreter]

13                           Examination by Mr. Rogers: [Continued]

14        Q.   Mr. Kabashi, I want to ask you, first of all, when you testified

15     in the Limaj case in 2005, was your memory better then than it is today?

16             MR. GUY-SMITH:  I rise only to -- I rise at this point because of

17     the objection I made previously.  It will be a standing objection, so I

18     don't have to continue to rise.  I think there is a prefatory issue that

19     needs to be addressed based on the state of the record and where we left

20     off with this witness's testimony yesterday and the state of contention

21     of the Prosecution at that time.

22             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.  That standing

23     objection is overruled.

24             Will you prosecute your case, Mr. Rogers.

25             MR. ROGERS:  Thank you.

Page 424

 1        Q.   Mr. Kabashi, I asked you whether when you testified in the Limaj

 2     case in 2005, was your memory better then than it is today?

 3        A.   I don't know.

 4        Q.   Were the events fresher in your mind, the events about which you

 5     testified, were they fresher in your mind then, in 2005, than they are

 6     today, in 2011?

 7             MR. GUY-SMITH:  I will object to that question as being asked and

 8     answered.

 9             JUDGE MOLOTO:  Sure.

10             MR. GUY-SMITH:  It's the exact same question framed in a slightly

11     different way.

12             JUDGE MOLOTO:  Overruled.

13             Just proceed, Mr. Rogers.

14             MR. ROGERS:

15        Q.   Mr. Kabashi, will you answer my question.

16        A.   Which was your question?

17        Q.   Were the events fresher in your mind in 2005 than they are today,

18     in 2011?

19        A.   I don't get you.

20        Q.   Was your recollection about what happened in Jabllanice in 1998

21     clearer in 2005 than it is today, in 2011?

22             MR. GUY-SMITH:  I rise to make the same objection.  The question

23     has now been asked three different times, same question.

24             JUDGE MOLOTO:  Overruled.

25             THE WITNESS: [Interpretation] I don't ...  I don't ...  I don't

Page 425

 1     know how to answer such questions.  Since I'm coming here with my hands

 2     cuffed in the same situation I was in the past.  In the prison everything

 3     is the same, nothing has changed.  I can't concentrate.

 4             MR. ROGERS:

 5        Q.   Mr. Kabashi, do you accept that in 2005 when you testified you

 6     gave a series of answers to a number of questions relating to the events

 7     that happened in 1998 in Jabllanice?  Do you remember doing that?  You

 8     were specifically questioned about what happened in Jabllanice, do you

 9     remember that?

10        A.   I know that I was asked questions, but -- but I can't -- I can't

11     make a difference whether it's 2005, 2011.  I'm not in a position to give

12     you an accurate answer and I don't want to make mistakes, because I see

13     that the more mistakes you make the more costly it becomes for you.  So

14     if it's possible, I would kindly ask you to stop these questions

15     because --

16        Q.   Mr. Kabashi --

17        A.   -- I don't think I am a valued witness for you.

18        Q.   Let that be the Court's decision.  Mr. Kabashi, when you answered

19     questions in 2005, did you answer them to the best of your recollection

20     and ability?

21        A.   That's the problem, I don't know how good I was at that time and

22     where I stand now --

23        Q.   [Previous translation continues]...

24        A.   -- I can't tell the difference between the situation at that time

25     and the current situation.

Page 426

 1        Q.   When you answered the questions in 2005, did you do so in the

 2     best way that you could, trying to remember as well as you could what had

 3     happened, to give the Court as honest and truthful account as you could

 4     at that time, remembering what you could at that time?

 5        A.   That's where the problem lies.  I can't recall that time.  I

 6     can't tell between that time and the present time.  I did my best, I

 7     hope -- I think to tell the truth because I don't -- I'm not used to

 8     lying.  But now I really am not in that state of mind as to -- as to

 9     clarify things properly.

10        Q.   I understand what you're saying about today --

11        A.   If you really understand me, then please do.  There is only one

12     way of understanding.

13        Q.   Mr. --

14        A.   Or do you want me to say something which makes no sense or some

15     word that might cost me dear?  I may tell you that I am very pleased to

16     stay in prison and not come so far with my hands cuffed and then go

17     through several checks and so on --

18        Q.   Yes, I understand, Mr. Kabashi.  When you testified in Limaj, you

19     gave a solemn oath, you swore the solemn oath at the beginning, gave a

20     solemn undertaking at the beginning, to tell the truth.  Do you remember

21     doing that?

22        A.   Yes, I do.

23        Q.   And when you answered questions following on from that oath, did

24     you answer them truthfully?

25             MR. GUY-SMITH:  I'm sorry, Your Honour, he now -- he is -- he now

Page 427

 1     has answered this question and has indicated that he doesn't know, he

 2     can't recall, that's where the problem lies, I can't tell between that

 3     time in the present time, I did my best I hope.  But Mr. Rogers, again,

 4     is asking the same question in a slightly different fashion.  It is a

 5     sheep in wolf's clothing, and the fact of the matter is we are in no

 6     different position than we were at the conclusion of yesterday's

 7     proceedings which is why I made the comment at the very beginning of

 8     today's proceedings.

 9             JUDGE MOLOTO:  I do think, Mr. Rogers, that question has been

10     asked and answered.

11             MR. KARNAVAS:  Well, Mr. President, I would add that Mr. Gregor

12     Guy-Smith stopped a little bit too soon because Mr. Kabashi also said I

13     think --

14             JUDGE MOLOTO:  [Overlapping speakers] --

15             MR. KARNAVAS:  I told the truth --

16             JUDGE MOLOTO:  And I'm not used to lying.

17             MR. KARNAVAS:  That's critical.

18             MR. EMMERSON:  I think if I may say so it's necessary to read

19     back earlier in the transcript because the witness also said I am not in

20     a position -- asked was what you said in 2005 fresher in your memory and

21     more accurate, I'm not in a position to give you an accurate answer, I

22     don't want to make mistakes because I see the more mistakes, the more

23     costly it becomes for you.  On a fair reading of the transcript up until

24     now, this witness has said on more than one occasion that he is not in a

25     position to stand over all the detail of what he said in Limaj trial in

Page 428

 1     2005.

 2             JUDGE MOLOTO:  We have read that, thank you so much,

 3     Mr. Emmerson.

 4             Yes, Mr. Rogers, you may proceed.

 5             MR. ROGERS:  Your Honours, what I would propose to do in light of

 6     the answers of the witness is I would wish to tender the Limaj transcript

 7     into evidence in this case.  Your Honours, I anticipate, we'll have to

 8     have an argument about that and it may be that it's better to do that

 9     short argument in the absence of the witness.  Maybe there won't be an

10     argument?

11             MR. EMMERSON:  There will, of course.

12             MR. ROGERS:  I thought there might.  It may be best to do that in

13     the absence of the witness so that he doesn't hear the exchanges going on

14     between counsel as to what he has and hasn't said backwards and forwards.

15     So I would invite the witness to withdraw whilst I make that application.

16             JUDGE MOLOTO:  [Microphone not activated]

17             I beg your pardon.  I'll say that again.  My microphone was not

18     on.

19             Mr. Kabashi, you are excused from the court for the moment.

20                           [The witness stands down]

21             MR. ROGERS:  Your Honours -- thank you.  Your Honours, yesterday

22     when at the -- near to the beginning of, more or less, these proceedings

23     I asked Mr. Kabashi about the Limaj transcript and he gave certain

24     answers.  Some of them were his own.  First one is at page 385 --

25             MR. EMMERSON:  Before Mr. Rogers carries on, could we just be --

Page 429

 1             MR. ROGERS:  Could I make my own application before it's

 2     interrupted.

 3             MR. EMMERSON:  Absolutely, but what Mr. Rogers is indicating he

 4     wishes to tender the transcript into evidence.  Now, so that we can all

 5     follow the submissions that he's about to embark upon, because at the

 6     moment I'm in the dark and I at least need some clarification.  Is he

 7     seeking to invite Your Honours to receive the transcript into evidence as

 8     evidence of the truth of its contents?  Is he seeking at this stage to

 9     mount his application to have the witness declared hostile and to

10     cross-examine him upon it with the statement admitted -- sorry, the

11     transcript admitted as evidence of the truth of its contents or precisely

12     what is the application that he is making to which these submissions now

13     go?  Because one needs to proceed in logical stages.

14             JUDGE MOLOTO:  [Microphone not activated]

15             As I just said, we will find out if we can just give him an

16     opportunity to make his application.

17             MR. ROGERS:  Your Honours, this isn't the application to treat

18     the witness as hostile or adverse.  If it was, I would have started with

19     the phrase:  This is an application to treat the witnesses as adverse.

20     It is an application to admit into the evidence in this case the Limaj

21     transcript, as evidence of the truth of its contents.  Now that it's

22     clear.

23             MR. EMMERSON:  Under which rule, please?

24             MR. ROGERS:  Let me get to it.

25             Your Honours, the witness has stated on a number of occasions

Page 430

 1     that the content of this evidence is true.  He said at transcript

 2     reference page 385:

 3             "What I said in my evidence in the Limaj case and what I'm saying

 4     today, yes, I accept that.  But for on a number of occasions now I've

 5     said that whatever you see in those statements is not true."

 6             So he makes a distinction between the evidence in the Limaj case

 7     on oath and the statements.  And then he -- I asked him a series of

 8     additional questions at the bottom of page 385, Your Honour will

 9     remember:

10             "Do you stand by what you said in the Limaj trial when you

11     testified before the Court then?"

12             He said:

13             "Yes, on my evidence there, yes.

14             "What you said to the Trial Chamber was the truth, was it,

15     Mr. Kabashi?

16             "A.  Yes, on my evidence before the court of law, yes, from what

17     I recall."

18             And then at the end of the transcript, near to the end of the

19     transcript of yesterday at page 401, line 20, when asked whether -- I

20     said this:

21             "Can I ask you this:  Is it your position relating to what you

22     said in the trial in Limaj, is what you said in that trial true?"

23             He said:

24             "As I already stated, I'm unable to discuss this further nor to

25     answer more than I have done so far.  What I said before this court I

Page 431

 1     accept to my recollection.  There are things that I don't remember."

 2             Your Honour, we say that this evidence should be admitted under

 3     Rule 89.  It's relevant evidence, it's probative and can be received

 4     under the rules of evidence, 89(C):

 5             "A Chamber may admit any relevant evidence which it deems to have

 6     probative value."

 7             Your Honours, the evidence goes directly to the heart of a number

 8     of the counts.  It deals with the associations, to some extent, between

 9     the accused and is a clear and consistent account given under oath before

10     a Tribunal of this -- a Chamber of this Tribunal, and can therefore be

11     considered to be reliable at the time that it was made and should be

12     received.  It's clearly the case that the witness is having real

13     difficulties remembering today what -- about these events, or so he says.

14     Take it at face value for the moment.

15             I'm not suggesting -- there may be other explanations for that,

16     but taken at face value, for the purposes of this application, it may be

17     that he's having some difficulties remembering, it may be there are other

18     explanations for him saying he doesn't remember.  But the fact is this

19     witness has not resiled from his testimony in the Limaj trial and has

20     stated on a number of occasions that it's true.  Now, when I asked him

21     about his memory today -- and Your Honours will recall that yesterday it

22     was all about memory-refreshing, and when I took him to a number of parts

23     of the Limaj testimony to ask him if he -- his memory today was

24     refreshed, it was clear from his answers that his memory was not today

25     refreshed.  That's at least how he dealt with it.  Mr. Guy-Smith objected

Page 432

 1     to me dealing with it in any other way.  The value of the answers is

 2     simply that he did not remember today about those events.  It doesn't

 3     mean that the evidence that he gave under oath in 2005 is not reliable

 4     and not accurate.

 5             Your Honours, so dealing with what he said today I think at

 6     transcript line -- page 7, the first few lines, I asked him from the page

 7     before:

 8             "When you answered the questions in 2005, did you do so in the

 9     best way that you could, trying to remember as well as you could what had

10     happened, to give the Court as honest and truthful account as you could

11     at that time, remembering what you could at that time?"

12             And he says:

13             "That's where the problem lies, I can't recall that time.  I

14     can't tell between that time and the present time.  I did my best, I

15     hope -- I think to tell the truth because I don't -- I'm not used to

16     lying.  But now I'm really not in that state of mind as to clarify things

17     properly."

18             So, Your Honours, to -- in our submission, it's quite clear that

19     he believes that he did tell the truth at that time, he said so on oath

20     yesterday twice and more now, and therefore you have the hallmarks of

21     reliability that you require in relation to that testimony.  It is

22     relevant and probative directly to the events in this case and should be

23     received.

24             My learned friends are quite entitled to seek to cross-examine

25     this witness on the contents of that statement as to its veracity or

Page 433

 1     otherwise and to explore with this witness in any other way how they see

 2     fit their clients' respective cases.  And ultimately it's a question of

 3     weight for Your Honours, having heard the evidence, having seen and

 4     assessed the demeanour of the witness, to determine - having regard to

 5     the answers that he's given both to the Prosecution and to the

 6     Defence - what weight should be attached to that statement in Limaj, the

 7     testimony in Limaj.  I'm not seeking to tender any of the other

 8     statements, only the testimony under oath.

 9             Your Honours, that's my application.

10             MR. EMMERSON:  The reason I rose --

11             JUDGE MOLOTO:  Yes, Mr. Emmerson.

12             MR. EMMERSON:  The reason I rose to interrupt at the outset to

13     ask what the nature of the application was and what rule it was being

14     made under is because Mr. Rogers in the letter he wrote yesterday

15     afternoon in which he set out the strategy he was proposing to adopt

16     today must have deliberately chosen to give the Defence no notice that he

17     was proposing to rely on Rule 89(F) and that's important because there's

18     law on when it's appropriate to rely on Rule 89(F).  There is a decision

19     of the Appeals Chamber that says that 89(F) is a lex generalis and that

20     the appropriate course, where a statement concerns the acts and conduct

21     of the accused, is to use Rule 92, either in this context 92 bis or

22     92 ter.  It is not open to a Trial Chamber to rely on 89(F) to admit

23     evidence concerning the acts and conduct of the accused where the

24     evidence sought to be relied upon would not meet the requirements of

25     92 bis or 92 ter.  I'm not in possession --

Page 434

 1             JUDGE MOLOTO:  Mr. Emmerson, you keep referring to 89(F).  Mr. --

 2     that's not the rule under -- subrule under which Mr. --

 3             MR. EMMERSON:  Rule 89 generally.

 4             JUDGE MOLOTO:  He was very specific, Rule 89(C).

 5             MR. EMMERSON:  It makes no difference, the principle is the same.

 6     Rule 89 is a --

 7             JUDGE MOLOTO:  Let's call it by the correct.

 8             MR. EMMERSON:  I apologise.  Rule 89 is a general provision, it's

 9     a lex generalis.  Rule 92 is the provision which deals with the admission

10     of any outside court testimony or statement which concerns the acts and

11     conduct of the accused.  Why am I not in a position to cite the authority

12     to Your Honours because Mr. Rogers gave us no notice of the nature of the

13     application he was making.

14             JUDGE DELVOIE:  Mr. Emmerson, 92, you say 92 bis and 92 ter.

15             MR. EMMERSON:  Yes.

16             JUDGE DELVOIE:  Shouldn't that include quater, and if I'm not

17     wrong, quinquies?

18             MR. EMMERSON:  Well, it certainly should include both of those,

19     but they're not capable of arising on the facts of this case.  92 quater

20     can't apply because the witness is clearly available and 92 -- he's here

21     in court so to that extent there can be no question about availability.

22             MR. GUY-SMITH:  If I might, Mr. Karnavas keeps on trying to

23     intercede.  I don't believe that he has any particular voice at this

24     particular time with regard to the application.

25             MR. EMMERSON:  92 quinquies can't apply because there's nothing

Page 435

 1     that the witness has said that can conceivably meet this requirement.  So

 2     I've confined what I have to say to 92 bis and 92 ter, and in any event

 3     you don't have an application under 92 before you.

 4             Now, the Appeals Chamber has held unequivocally that it's not

 5     open to the Prosecution to rely on the generalis of Rule 89 if the

 6     requirements, the specific requirements of Rule 92 are not capable of

 7     being satisfied.  So what one needs to do, with respect, is look first at

 8     92 bis and secondly at 92 ter.  I'm going to simply say as regards 92 bis

 9     that it cannot conceivably apply.  I see Your Honour indicating

10     provisional agreement.  So one turns to Rule 92 ter.

11             "The Trial Chamber may admit in whole or in part the evidence of

12     a witness in the form of a written statement or transcript of evidence

13     given by a witness in proceedings before the Tribunal under the following

14     conditions:

15             "(A) that is satisfied, the witness is present in court.

16             "(B) the witness is available for cross-examination ..."

17             That criteria is clearly not satisfied.  We're not dealing here

18     with a hostile witness.  We are dealing here with a witness who has

19     indicated that he is unable or unwilling to testify, and he's not in a

20     position to answer questions on the substance and that applies as much to

21     the Defence as it does to the Prosecution and he's not available for

22     cross-examination.  And third condition is that he must attest that the

23     transcript accurately reflects not only his declaration but what he would

24     say if examined before this Tribunal.

25             Now, I want to just pause for a moment.  It is absolutely and

Page 436

 1     abundantly clear that those requirements are not met.  They're not met

 2     because he is not available for questioning on the merits and they're not

 3     met because they don't represent the testimony he would give in these

 4     proceedings because he hasn't said that they do.  Indeed he's said the

 5     contrary.  I'm concerned that Mr. Rogers stood up to Your Honours to make

 6     this application and in doing so he said at page 12, line 3:

 7             "It is clearly the case that this witness has difficulties

 8     remembering."

 9             That is the Prosecution's position.

10             MR. ROGERS:  For the purposes of this application.  I made it

11     quite clear, just a moment, you're misrepresenting what I said.  I made

12     it quite clear that that was on one view for the purpose of this

13     application that the witness may have difficulty remembering or there may

14     be other alternative explanations as to why he is not answering the

15     questions.  Either way those are matters that can be taken into account.

16     It's not right to just highlight one, jump on top of it and seek to

17     suggest that that is the entire basis of my application, which it quite

18     clearly was not and he knows that.

19             MR. EMMERSON:  Thank you, Mr. Rogers.  What Mr. Rogers said at

20     page 12, line 3 that it is clearly the case that this witness is having

21     difficulties remembering.  He then, unsurprisingly, realised that that

22     position is entirely inconsistent with his stated intention of seeking to

23     have the witness turned hostile, which is the position he is adopting.

24     He wishes to ride two inconsistent horses and one analysis for the

25     purpose of this application and no doubt a different analysis, inevitably

Page 437

 1     a different analysis, which he's already told us yesterday he intends to

 2     pursue in relation to an application he's yet to make.

 3             So I understand that Mr. Rogers is uncomfortable with the fact

 4     that he said what he said on the transcript and he almost immediately

 5     started to backtrack from it, but that is, with respect, because he

 6     hasn't a clear line on what it is he is saying in relation to this

 7     witness.

 8             But be that as it may, the lex specialis is Rule 92 ter, leaving

 9     aside the fact that this witness is clearly not available for questioning

10     by the Defence or by the Prosecution, and there is not a situation where

11     he is going to give evidence in substance.  He has very clearly attested

12     this morning that it is not the position that he is able to say that what

13     he said in that transcript is the evidence that he would give in these

14     proceedings orally.

15             I just remind Your Honours of the relevant passages.  He is asked

16     this morning by Mr. Rogers:

17             "I asked you whether when you testified in the Limaj case in 2005

18     was your memory better then than it is today?

19             "I don't know."

20             "Were the events fresher in your" -- I'm leaving aside, I'm

21     excising Mr. Guy-Smith's objections as I read the transcript from page

22     422 on.

23             "Were the events fresher in your mind, the events about which you

24     testified, were they fresher in your mind" -- please sit down.

25             MR. ROGERS:  Could Mr. Emmerson, when he cites the transcript

Page 438

 1     reference, could he clearly identify so that we could double-check it,

 2     because there have been a number of occasions when what he says has not

 3     been accurate.  So that we can check the transcript.

 4             MR. EMMERSON:  I thought I'd just given it to you.  It's page 4,

 5     line 22.  Mr. Rogers:

 6             "Thank you."

 7             I'll go through it again and I'm just going to read it verbatim

 8     right the way through not selectively other than to excise

 9     Mr. Guy-Smith's objections.

10             "Mr. Kabashi, I asked you whether when you testified in the Limaj

11     case in 2005 was your memory better then than it is today?

12             "A.  I don't know.

13             "Q.  Were the events fresher in your mind, the events about which

14     you testified, were they fresher in your mind then in 2005 than they are

15     today?"

16             Dropping down from the objection.

17             "Mr. Kabashi will you answer my question.

18             "A.  Which was your question.

19             "Q.  Were the events fresher in your mind in 2005 than they are

20     today in 2011?

21             "A.  I don't get you.

22             "Q.  Was your recollection about what happened in Jabllanice in

23     1998 clearer in 2005 than it is today.

24             "A.  I don't ...  I don't ...  I don't know how to answer such

25     questions since I'm coming here with my hands cuffed in the same

Page 439

 1     situation I was in the past in the prison.  Everything is the same.

 2     Nothing has changed.  I can't concentrate.

 3             "Q.  Mr. Kabashi do you accept that in 2005 when you testified

 4     you gave a series of answers to a number of" -- it says "confessed," it

 5     should be questions -- "relating to the events that happened in 1998 in

 6     Jabllanice.  Do you remember doing that?  You were specifically

 7     questioned about what happened in Jabllanice.  Do you remember that?

 8             "A.  I know that I was asked questions," says Mr. Kabashi,

 9     "but -- but I can't ...  I can't make a difference whether it's 2005,

10     2011.  I'm not in a position to give you an accurate answer and I don't

11     want to make mistakes because I see the more mistakes you make the costly

12     it becomes for you.  So if it's possible I would kindly ask you to stop

13     these questions."

14             Looking over for a moment at 92 ter(A)(iii), how could that

15     conceivably be regarded as attesting that the witness would say, if

16     examined in these proceedings, what he said in the Limaj trial.

17     Continuing:

18             Mr. Kabashi, after an interruption:

19             "I don't think I am a valued witness for you.

20             Mr. Rogers:

21             "Let that be the Court's decision.  Mr. Kabashi, when you

22     answered questions in 2005 did you answer to them to the best of your

23     recollection and ability.

24             "A.  That's the problem.  I don't know how good I was at the

25     time, and where I stand now, I can't tell the difference between the

Page 440

 1     situation at that time and the current situation."

 2             Can I just pause, parenthetically.

 3             JUDGE MOLOTO:  In fact, in fact, while you pause, I'm wondering

 4     are you going to reading all that --

 5             MR. EMMERSON:  I'm going to read the relevant passages.

 6             JUDGE MOLOTO:  If you can sort of read a point --

 7             MR. EMMERSON:  Well, I'm sorry.  I was criticised a moment ago

 8     for being selective.

 9             JUDGE MOLOTO:  Anyway --

10             MR. EMMERSON:  Mr. Rogers was criticising me for being selective.

11     Well then, let me focus in on these, because --

12             JUDGE MOLOTO:  What I'm trying to say to you, Mr. Emmerson, is

13     that you can rest assured the Chamber does have the transcript and we

14     will read it.

15             MR. EMMERSON:  Let me just be absolutely clear the key passages,

16     first of all, as we've already indicated in the passages I've cited,

17     Mr. Kabashi does not say that he would give evidence in these proceedings

18     in the same terms as he gave evidence in the Limaj trial.  He says he is

19     not in a position to stand over what he said in the Limaj trial because

20     he doesn't now know whether what he said is right.  He said I'm not in a

21     position to give you an accurate answer.  I don't want to make more

22     mistakes -- Sorry, I don't want to make mistakes, because I see the more

23     mistakes you make the more costly it becomes for you.  He's already told

24     us that he's made a number of mistakes.  He then goes on, a few lines

25     down, to say:

Page 441

 1             "I can't tell the difference between the situation at that time

 2     and the current situation."

 3             And in answer to the specific question, "Did you tell the Limaj

 4     Chamber the truth to the best of your ability," he says, "That's the

 5     problem."

 6             JUDGE MOLOTO:  We will read the transcript.

 7             MR. EMMERSON:  I'm grateful, but it's important, given that

 8     Mr. Rogers is making submission about what the witness's evidence is that

 9     I put the key passages on the record.  He then asks him:

10             "Did you give evidence to the best of your ability,"

11     parenthetically, and he replies:

12             "That's where the problem lies, I can't recall that time.  I

13     can't tell between that time and the present time.  I did my best I

14     hope -- I think to tell the truth because I'm not used to lying but now

15     I'm really not in a state of mind as to clarify things properly.

16             Now just for the sake of completeness can you just go down to

17     page 12, line 3, and I know that Mr. Rogers took objection to

18     my quotation from him, but just to remind Your Honours.  Page -- sorry,

19     page 12 -- page 11, line 23:

20             "Your Honours, the evidence does go directly to the heart" - this

21     is Mr. Rogers - "of a number of counts.  It deals with the associations

22     to some extent between the accused and is a clear and consistent account

23     given under oath before a Tribunal -- a Chamber of this Tribunal and can

24     therefore be considered to be reliable at the time it was made and should

25     be received," says Mr. Rogers.  And then this:

Page 442

 1             "It's clearly the case that the witness is having real

 2     difficulties remembering today what -- about these events or so he says

 3     take it at face value for the moment."

 4             Leaving that last passage aside, Your Honours, we are in this

 5     situation:  Mr. Rogers clearly cannot satisfy the requirements of

 6     Rule 92 ter, he is not in those circumstances entitled to rely on any

 7     general provision in Rule 89.  If authority is needed for that it can be

 8     sought in a short adjournment.  It shouldn't be necessary to have an

 9     adjournment because if Mr. Rogers thought he was going to do this, he

10     should have told the Defence so that we would have the authority

11     available to cite to you but the position is very clear.

12             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

13             MR. GUY-SMITH:  For matters of clarity and brevity I join in the

14     remarks made by Mr. Emmerson.

15             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

16             Mr. Harvey.

17             MR. HARVEY:  Your Honour, I also join in those remarks, there is

18     only one thing I would like to add which is on a completely different

19     point.  I was listening, I don't speak Albanian, don't understand

20     Albanian, but I was listening to the Albanian interpreter and I realise

21     that she is fighting desperately for breath and particularly when people

22     are reading from transcripts we all tend to read rather more quickly and

23     I just as a general reminder to everybody, we do need to slow down a bit

24     when we're reading from transcripts.

25             JUDGE MOLOTO:  Thank you very much for that, Mr. Harvey.

Page 443

 1             JUDGE DELVOIE:  Mr. Emmerson, when I remember that 92 does not

 2     only contain 92 bis and 92 ter, but also quater and quinquies your answer

 3     was that 92 quater didn't need our attention because, clearly, the

 4     witness was available.

 5             MR. EMMERSON:  Yes.

 6             JUDGE DELVOIE:  However, just a few moments ago and it's in the

 7     transcript, page 17, line 20, 21, you said that the witness clearly is

 8     not available.

 9             MR. EMMERSON:  No, I said he wasn't available for

10     cross-examination.

11             JUDGE DELVOIE:  For questioning by the Defence and by the

12     Prosecutor.

13             MR. EMMERSON:  He's not available for questioning but he's

14     available to the Tribunal.  The terms of Rule 92 quater are clear:

15             "The evidence of a person in the form of a written statement or

16     transcript who has subsequently died and who can no longer with

17     reasonably diligence be traced or who by reason of bodily or mental

18     condition is unable to testify orally may be admitted."

19             He's certainly not dead, he certainly not cannot be traced, he's

20     certainly not unable by bodily condition.  If he were unable by reason of

21     mental condition there would need to be evidence.  There was no

22     application made under 92 quater so I hadn't sought to address it in my

23     primary submissions.  Does that properly answer Your Honour's question.

24             JUDGE DELVOIE:  I won't discuss it any further with you, Mr.

25     Emerson.

Page 444

 1             MR. EMMERSON:  Unavailability means he's not capable af being

 2     brought into the courtroom and take the oath, and this witness has done

 3     both, Your Honour.

 4             JUDGE MOLOTO:  Mr. Rogers, any response?

 5             MR. GUY-SMITH:  Excuse me, if I might, and if I might with regard

 6     to the question that you asked, Judge Delvoie, and he has testified in

 7     these proceedings orally, which would be another condition under

 8     92 quater.  And also since that matter may arise and since you raised the

 9     issue with regard to quinquies, also quinquies.

10             MR. EMMERSON:  Can I also say we don't need at this stage

11     procedurally to respond directly to that because there's no application

12     before Your Honours under those provisions.

13             JUDGE MOLOTO:  Mr. Rogers, any response or reply?

14             MR. ROGERS:  Yes.  Your Honours, yes.

15             89(C).  Rules under 89 are important because they provide the

16     Chamber with a fall-back if they require it to ensure that probative and

17     relevant evidence is admitted in the course of the trial and that may be

18     necessary in certain circumstances where the strict provisions of some of

19     the other rules are not met.  Now, we would submit that under 92 ter you

20     have sufficient in relation to the answers that were given yesterday to

21     deal with it under 92 ter in any event.  Now, I know that under (A)(iii)

22     there appears to be a more specific provision relating to the witness's

23     declaration and what he would say if examined, but Your Honours will know

24     that usually 92 ter is applied at a stage before we reach this particular

25     stage, which is the witness having come viva voce starts to testify and

Page 445

 1     one expects him to testify fully and normally without having regard to

 2     92 ter, 92 ter being at a stage before as we know when we have been

 3     dealing with these applications.  In an event to avoid the necessity for

 4     a witness to have to repeat his evidence as a vehicle of convenience for

 5     the Court to receive in a simple way the evidence, as it took to prevent

 6     it having to be repeated all over again.

 7             That was never the intention with this witness, to pursue an

 8     application under 92 ter because it was felt appropriate for him to be

 9     here, to be available for cross-examination, and for him to give his

10     evidence orally.  He has given evidence orally to some extent, painfully

11     difficult, but nevertheless there are pieces of evidence that have been

12     obtained from him.  And we're left in a position with a situation where

13     the Trial Chamber knows that he has given a full account of the events

14     that are the subject matter of this trial.  In an earlier time than now

15     when it's obvious that taking simply memory recollections, it's obvious

16     that his recollection then must have been better than it was now.  If you

17     look at the transcript, it's quite clear that he gives a series of

18     unimpeded free-flowing answers to the questions that were posed to him at

19     the time.

20             The situation that we're confronted with today is that he, for

21     whatever reason, whether it be genuine or otherwise, has failed to answer

22     the questions relating to what he said previously in any detail, but in

23     our submission, quite clearly, has not resiled from what he said.  What

24     he's saying is:  I can't remember today and I don't want to confuse

25     myself from today thinking about the situation today as it might have

Page 446

 1     been then.  That doesn't mean that his recollection in 2005 was not

 2     clear.  And Your Honours I think are entitled to assume that when a

 3     witness goes into a witness box, takes the solemn oath, and testifies,

 4     that they do so in accordance with that oath and to the best of their

 5     recollection and ability.  To do so -- to fail to do that would be to

 6     suggest that witnesses who take a solemn oath don't try to do the things

 7     that they're expected to do and the whole criminal justice system all

 8     over the world will collapse if we don't start taking some faith in the

 9     oaths that witnesses use.  Otherwise, there would be no need for them at

10     all.

11             So, Your Honours, it's quite clear if I just refer, if I may,

12     briefly to the transcript in Limaj which is 65 ter 3047 at page 4, when

13     he was sworn, not only was he sworn to testify in the case but he was

14     asked some specific questions about his prior statements.  And

15     Your Honours, I'm not seeking to tender those prior statements, but it's

16     significant for how the examination then followed.  It said this:

17             "Witness, do you recall that you gave two statements to the

18     investigators of the Office of the Prosecutor in October and in December

19     of 2004?

20             "A.  Yes," he says at page 5 of the e-court reference.

21             "Q.  Did you give those statements voluntarily?

22             "A.  Yes, after the Prosecutors asked me to give a statement.

23             "Q.  And apart from some corrections and explanations which we

24     had discussed earlier this week, were you as truthful as you could be in

25     those statements?

Page 447

 1             "A.  Yes."

 2             And then they move on into the examination.

 3             "Q.  Witness, I'm going to directed you now to 1998 ..." and then

 4     it begins and the account which flows for quite a few pages of the

 5     transcript testimony starts as to how he went to Jabllanice, who he met

 6     there, who the commanders were, people who were detained, he names them

 7     in detail, and it goes on and on and on, setting out his full account of

 8     exactly what happened.  Your Honours can see it de bene esse if

 9     necessary, it's in the e-court, to look at, to see how he gives his

10     account and decide for yourselves, based upon that free-flowing account,

11     whether in your view he was giving clear recollection to the best of his

12     ability of the events that had happened.  Whatever he may be saying

13     today, what was the situation in 2005?  Because that is the document that

14     we seek to admit relating to his testimony on that occasion.

15             To exclude it, respectfully, would be to remove from the ambit of

16     this case important evidence about which Your Honours -- relating to the

17     very events about which Your Honours must make a decision.  Now, the

18     question of weight is another matter all together.  But, Your Honours, we

19     would submit that it would be wrong to exclude it at this stage.

20             JUDGE MOLOTO:  Thank you.

21             MR. EMMERSON:  Your Honours, before Your Honours take this matter

22     further obviously because we were given no notice we didn't have the

23     authorities available to hand.  In the jurisdiction in which Mr. Rogers

24     and I practice it is the duty of counsel on both sides to bring to the

25     attention of the Court authorities which are against them as well as

Page 448

 1     authorities which are in their favour.  There are two unequivocal

 2     decisions of the Appeals Chamber which hold that the application which is

 3     before you now is misconceived and unlawful.  The first is the decision

 4     of the Appeals Chamber in Galic and the second is the decision of the

 5     Appeals Chamber in Milosevic.  I'm going to read to you from Milosevic

 6     which cites Galic.  This is a decision on interlocutory appeal on the

 7     admissibility of evidence in chief in the form of written statements.  It

 8     is dated the 30th of September, 2003 with Judge Pocar presiding, and it

 9     cites the authority of Galic.  Essentially, the application had been made

10     in broadly similar terms in that case and the Trial Chamber had held that

11     unless the requirements of Rule 92 bis were satisfied, there was no scope

12     for invoking Rule 89(C) which is exactly what is happening here and based

13     on the decision of the Appeals Chamber which is unequivocal in Galic, the

14     Trial Chamber in Milosevic ruled that the statements were inadmissible,

15     the Prosecution appealed, as Mr. Rogers must know and lost.  I can just

16     read the judgement for you.  I don't have copies for the reasons I've

17     explained.

18             "Issues on the appeal.  The first issue for consideration is

19     whether as a matter of law the giving of evidence in chief in the form

20     proposed by the Prosecution is consistent with the rules, assuming that

21     the first issue is answered in the affirmative, then it is requested" --

22                           [Trial Chamber and Registrar confer]

23             JUDGE MOLOTO:  Please slow down.

24             MR. EMMERSON:  Slow down.  I apologise.

25             "Assuming that the first issue is answered in the affirmative,

Page 449

 1     then it is requested by the Prosecution that the Appeals Chamber exercise

 2     its discretion and admit the evidence in question pursuant to Rule 89.

 3             "Discussion, is the proposal consistent with the rules.

 4             "The lex generalis argument.

 5             "The Prosecution submits that Rule 89 is not lex generalis to

 6     92 bis," exactly the submission you just heard.

 7             "In support of this submission the Prosecution relies on the fact

 8     that both provisions were added to the Rule during the 19th revision of

 9     the Rules of Procedure and Evidence on 13 December 2000.  And upon the

10     reasoning in Judge Shahabuddeen's partial dissenting opinion in a

11     previous application in this case.

12             Then this.  Paragraph 9.

13             "The Appeals Chamber has previously dealt with the relationship

14     between Rules 89 and 92 bis in Galic.  In Galic, the Appeals Chamber held

15     that Rule 92 bis is the lex specialis which takes the admissibility of

16     written statements of prospective witnesses and transcripts of evidence

17     out of the scope, out of the scope, of the lex generalis of Rule 89(C).

18     In accordance with this decision, where Rule 92 bis is applicable, the

19     requirements of 92 bis must be met in order for the Trial Chamber to

20     admit evidence pursuant to Rule 89."

21             It is with respect, dismay that Mr. Rogers made this application

22     without notice, made it in breach of the clear ruling of the Appeals

23     Chamber did not think it appropriate to bring those rulings to

24     Your Honours' attention.

25                           [Trial Chamber confers]

Page 450

 1             JUDGE MOLOTO:  Obviously the Chamber would like to reflect on

 2     this before it gives its ruling.  We will not be able to give this ruling

 3     right now, and that being the case the question is:  Is there anything

 4     that we can do pending the decision or do we have to adjourn?

 5             MR. ROGERS:  Your Honours, I think it would be better if you

 6     adjourned, had a look at the authorities, and made your decision as you

 7     consider appropriate.  It is important because I think it's reached an

 8     important stage of the proceedings to determine how we may move next,

 9     because if Your Honours decline the application to receive the evidence

10     at this stage, then I will have to move to seek to elicit it, if I can,

11     in another way at this -- so could you deal with it first of all and then

12     make a determination.

13             Your Honours, whatever may be said about 92 bis, this is clearly

14     not a 92 bis case and it doesn't arise in the same way that it would

15     arise under 92 bis or 92 ter.  It arises in a very different and very

16     unusual set of circumstances, we submit, that a witness who has come

17     under subpoena and with threat of contempt in other proceedings comes,

18     starts to testify, and then moves away in the way that he did from giving

19     a free-flowing account, when we know that in the past he has given a

20     free-flowing account.  So, Your Honours, we don't accept that we are in

21     the same situation that we normally find ourselves in these cases, and

22     that is why rules are broad and capable of broad interpretation to ensure

23     that ultimately justice is done and should not overly restricted.  But if

24     Your Honours disagree with that, then of course we understand.  But there

25     is -- that is what we say.

Page 451

 1             JUDGE MOLOTO:  Thank you very much.

 2             MR. ROGERS:  [Overlapping speakers] -- submissions and take it

 3     from there.

 4             MR. EMMERSON:  Your Honours, just before Your Honours rise

 5     yesterday Mr. Rogers complained to Your Honours that I had made a number

 6     of personal criticisms of him, about his professionalism in the conduct

 7     of this case.  I wonder if for the purposes of the record he wants I'm

 8     only giving his opportunity to offer an explanation as to why he didn't

 9     cite the two leading Appeals Chambers authorities before you before

10     making an application which they forbid.

11             JUDGE MOLOTO:  It is not necessary.

12             MR. GUY-SMITH:  Your Honour, I'm rising for slightly a different

13     point.  Today Mr. Rogers said at page 24, line 24:

14             "And we're left in a position with a situation where the

15     Trial Chamber knows that he has given a full account of the events of the

16     subject matter of this trial."

17             MR. ROGERS:  [Microphone not activated]

18             MR. GUY-SMITH:  No, it doesn't say that, sir.

19             Yesterday Mr. Rogers said at page --

20             MR. ROGERS:  [Microphone not activated]

21             MR. GUY-SMITH:  Yesterday at page 372, line 25 continuing on to

22     page 373, lines 1 and 2, Mr. Rogers said:

23             "Limaj, as Your Honours know, wasn't really about this.  This was

24     a small part of the Limaj case and what happened in Jabllanice was not

25     the focus of that trial."

Page 452

 1             JUDGE MOLOTO:  Thank you very much.

 2             We are going to take an adjournment, and the parties will be

 3     notified when we can come back.  Court adjourned.

 4                           --- Whereupon the hearing adjourned at 9.59 a.m.,

 5                           to be reconvened on Wednesday, the 24th day of

 6                           August, 2011, at 9.00 a.m.