110824ED

Page 453

1 Wednesday, 24 August 2011

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.22 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 the appearances for the day, starting with the

13 Prosecution, please.

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

15 the Prosecution, together with Ms. Priya Gopalan and our case manager

16 today, Ms. Line Pedersen.

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

18 For Mr. Haradinaj.

19 MR. EMMERSON: Good morning, Your Honour, Ben Emmerson for

20 Mr. Haradinaj, together with Rod Dixon, Annie O'Reilly, and

21 Andrew Strong.

22 JUDGE MOLOTO: Thank you so much, Mr. Emmerson.

23 And for Mr. Balaj.

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

25 with Colleen Rohan, Chad Mair, and Mr. Zyberi continues to be with us on

Page 454

1 behalf of Mr. Balaj.

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

3 For Mr. Brahimaj.

4 MR. HARVEY: Good morning, Your Honours, Richard Harvey with

5 Mr. Paul Troop and Ms. Sophie Rigney for Mr. Brahimaj.

6 JUDGE MOLOTO: Thank you so much, Mr. Harvey.

7 MR. ROGERS: Your Honour, before you render your decision, may I

8 just thank you for the time that you gave us this morning to enable me to

9 just resolve one or two matters with Mr. Karnavas. It related to some

10 medical notes that he provided to me from his client which I've managed

11 to now distribute to my learned friends and I wanted to just put that on

12 record, if there was anything they wanted to raise relating to that

13 before Your Honours are about to render your decision, if you are going

14 to render your decision, I wanted to just give them that opportunity, if

15 they wanted that.

16 JUDGE MOLOTO: Would you like to allow the Chamber to run the

17 trial?

18 MR. ROGERS: Your Honour, of course.

19 JUDGE MOLOTO: Thank you so much. We will render the decision

20 because we know nothing about medical records right now. So, let us do

21 what we anticipate rather than what we don't anticipate. I did say good

22 morning to everybody. Yes.

23 Yesterday we had an oral application and the Chamber is about to

24 give its decision.

25 The Chamber is seized of an oral application made by the

Page 455

1 Prosecution in court on the 23rd of August, 2011, to admit into evidence

2 in the present proceedings the transcript of Shefqet Kabashi's evidence

3 in the Limaj case as evidence for the truth of its contents. It is

4 submitted that the witness has stated under oath on a number of occasions

5 that the content of this evidence is true. Reference is made in

6 particular to transcript pages 385 and 401 of the hearing of the 22nd of

7 August, 2011, and transcript page 426 of the hearing of 23rd August. It

8 is submitted that the proposed evidence is relevant and probative and can

9 be received under 89(C) of the Tribunal's Rules of Procedure and

10 Evidence.

11 The application is opposed by the accused. Counsel for Haradinaj

12 submits that it is not open to the Prosecution to rely on Rule 89 if the

13 specific requirements of Rule 92 bis and Rule 92 ter are not capable --

14 capable of being satisfied. With respect to Rule 92 ter it is submitted

15 that the witness is not available for cross-examination in that while

16 present in the courtroom he has indicated that he's unable or unwilling

17 to answer questions on the substance, whether from the Prosecution or

18 from the Defence, and that the witness has not stated that the transcript

19 accurately reflects what he would have said if examined before the

20 Tribunal. The position advanced is that if the Prosecution cannot

21 satisfy the requirements of Rule 92 ter, it is not entitled to rely on

22 any general provision in Rule 89. Reference is made to Appeals Chamber

23 jurisprudence, in particular to the Galic decision of June 2002 and to

24 the Milosevic decision of 30th September 2003 in support of the

25 submission that unless the requirements of Rule 92 bis were satisfied,

Page 456

1 there was no scope for invoking Rule 89(C).

2 Counsel for Balaj and Brahimaj joined the Haradinaj Defence in

3 these decisions.

4 In his reply, counsel for the Prosecution submits, inter alia,

5 that it was never the Prosecution's intent to call this witness under

6 Rule 92 ter because it was felt appropriate for this witness to give

7 evidence orally. He submits that the witness gave some limited evidence

8 orally and that Rule 92 ter is usually applied before a witness has come

9 and started to give viva voce evidence.

10 The present application concerns the admissibility of a

11 transcript of the prior testimony of a witness before this Tribunal for

12 the truth of its contents. The procedure for submission of written

13 statements and transcripts in lieu of oral testimony is provided for by

14 Rule 92 bis of the Rules. Rule 92 bis gives discretion to the

15 Trial Chamber to admit written statements or transcripts of prior

16 evidence of witnesses, provided that certain conditions listed in the

17 rule and elaborated on in the jurisprudence are met. The Appeals Chamber

18 has commented on the application of Rule 92 bis and Rule 89(C) to witness

19 statement and transcripts of prior evidence of a witness. It has held

20 that a party cannot be permitted to tender a written statement or

21 transcript under Rule 89(C) in order to avoid the stringency of

22 Rule 92 bis. That is Galic decision, paragraph 31. As explained by the

23 Appeals Chamber in Galic decision, paragraphs 28 and 30, and Milosevic

24 decision of 30th September 2003, paragraph 18, subparagraph 3,

25 Rule 92 bis as a whole is concerned with one very special type of hearsay

Page 457

1 evidence which would previously have been admissible under Rule 89(C),

2 namely, written statements given by prospective witnesses for the

3 purposes of legal proceedings. Because of the need to ensure reliability

4 of the admitted evidence in such circumstances, the Appeals Chamber has

5 held that Rule 92 bis is the lex specialis which takes the admissibility

6 of such written statements of prospective witnesses and transcripts of

7 evidence out of the scope of the lex generalis of Rule 89(C). Although

8 the general provisions implicit in Rule 89(C) remain applicable to

9 Rule 92 bis. That's the Galic decision paragraph 31 and Milosevic

10 decision of 30th September, 2003, paragraph 18(3).

11 The Appeals Chamber has made clear in its jurisprudence, however,

12 that Rule 92 bis does not exclude the admission of written statements or

13 transcripts in all circumstances. It has held that where Rule 92 bis is

14 applicable, the requirements of Rule 92 bis must be met but the

15 prohibition of Rule 92 bis does not extend to material not governed by

16 Rule 92 bis. That's Milosevic decision of 30th September 2003,

17 paragraphs 9 and 10.

18 It has held that a written statement given by prospective

19 witnesses to OTP investigators or others for the purpose of legal

20 proceedings may be admitted into evidence "notwithstanding its

21 noncompliance with Rule 92 bis - (i) where there has been no objection

22 taken to it or (ii) where it has otherwise become admissible, for

23 example, the written statement is asserted to contain a prior statement

24 inconsistent with the witness's evidence."

25 Milosevic decision of 30th September 2003, paragraph 18 and

Page 458

1 paragraph 14.

2 Other examples of material not governed by Rule 92 bis given by

3 the Appeals Chamber include hearsay material which has not -- was not

4 prepared for the purposes of legal proceedings, for example, a report

5 prepared not for the purpose of legal proceedings or situations where the

6 witness is present in court and can orally attest to the accuracy of the

7 written statement. Paragraph 16 of the Milosevic decision of 30th

8 November -- September 2003.

9 In the Chamber's view, Rule 92 bis is not applicable in the

10 present situation. The witness was called to give evidence viva voce.

11 He commenced giving evidence and in fact did give some evidence orally.

12 The witness then started that -- stated, I beg your pardon -- the witness

13 then stated that he cannot answer the Prosecution's questions. It became

14 clear in the course of his examination-in-chief that his disposition

15 before this Chamber is inconsistent with his disposition in the Limaj

16 case, to the extent that in the latter case he was able to answer the

17 question put to him by the Prosecution, questions to the same events as

18 the questions put to him in the present case, and was able to provide an

19 account of the relevant events. In the view of the Chamber, the present

20 situation is one of the situations specifically envisaged by the

21 Appeals Chamber where the written evidence may be admitted. The Chamber

22 is satisfied that in the present circumstances Rule 92 bis is not the

23 lex specialis which excludes the applicability of Rule 89(C).

24 It should be noted that in many jurisdictions a special procedure

25 is to be followed in cases where a party calling a witness wishes to

Page 459

1 cross-examine the witness or tender his prior witness statement for the

2 truth of its contents. The Appeals Chamber has confirmed that in this

3 Tribunal it is for the Trial Chamber hearing the case to decide whether

4 to allow a party to put a prior statement to its own witness and

5 cross-examine that witness. This decision may or may not be done on the

6 basis of a prior determination of hostility.

7 Popovic decision of 1st February 2008 at paragraph 28.

8 It was put to the Chamber that if the requirements of Rule 92 ter

9 are not satisfied, the Prosecution is not entitled to rely on any general

10 provision in Rule 89. In the Chamber's view, Rule 92 ter does not apply

11 in the present circumstances. As held in the jurisprudence, the main

12 objective of Rule 92 ter is to ensure an effective and expeditious trial

13 while respecting the rights of the accused. And we can see for that

14 Prlic decision of the 21st of July, 2007, and the Delic decision of the

15 27th of September, 2007, and those are Trial Chamber's decisions.

16 Rule 92 ter is concerned with the mode in which a witness gives

17 evidence, whether entirely viva voce or whether his evidence in chief may

18 be admitted in written form if a witness is present in court, available

19 for cross-examination, and attests that the statement or transcript in

20 question adequately reflect what the witness would say if examined. In

21 other words, Rule 92 ter is not intended to replace the oral evidence of

22 a witness. It was precisely for this reason why the Appeals Chamber

23 excluded situations where a witness is present in court, available for

24 cross-examination, and any questioning by the Judges and, and attests

25 that the statement accurately reflects his or her declaration and what he

Page 460

1 or she would say if examined from the scope of application of

2 Rule 92 bis. For that you can see paragraph 16 of the Milosevic decision

3 of the 30th of September, 2003.

4 The Chamber would note that the Milosevic decision of the same

5 date I've just mentioned was issued before the adoption of Rule 92 ter in

6 2006, and Rule 92 ter to a large extent is based on that decision.

7 The Chamber turns now to consider whether the proposed transcript

8 is admissible under Rule 89(C). Under Rule 89(C), the Chamber may admit

9 any relevant evidence which it deems to have probative value. The

10 Chamber is satisfied that the proposed transcript is both relevant and of

11 probative value. The proposed transcript relates to the witness's

12 knowledge about two men, Pal Krasniqi and Skender Kuci, who are victims

13 of the acts alleged in the indictment and to other matters relevant to

14 the present indictment. The witness gave evidence under oath before

15 another Chamber at this Tribunal. He was examined before the

16 Trial Chamber in Limaj by the Prosecution and cross-examined by the three

17 Defence teams in that case. The witness confirmed before that Chamber

18 that his evidence in the Limaj case was truthful and so he did before

19 this Chamber. Rule 89(C) grants the Chamber broad discretion. The

20 Appeals Chamber has held that this discretion must be exercised "in

21 harmony with the Statute and the other Rules to the greatest extent

22 possible." Kordic decision of 21st July 2000, paragraph 20; Galic

23 decision, paragraph 27, the Galic decision that we have referred to

24 earlier.

25 The Chamber therefore will consider whether the admission of the

Page 461

1 proposed transcript in the present circumstances is in the interests of

2 justice and whether it may cause the accused prejudice. No parts of

3 Rule 92, indeed no other rule, anticipates such a situation as now arises

4 where a witness called to give viva voce evidence and having made the

5 solemn declaration declares himself unwilling or unable to answer

6 pertinent questions put by the party calling him. The evidence sought to

7 be tendered by the Prosecution is, short of viva voce testimony, the best

8 evidence obtainable. It is testimony of the witness in proceedings

9 before this Tribunal where there was full opportunity for

10 cross-examination by a counsel of the parties on the opposing side and

11 where there is no indication from the record that the witness had any

12 reservations or difficulties in being able to testify.

13 With respect to whether the admission of the document will cause

14 prejudice to the rights of the accused, the Chamber notes in this respect

15 that its decision to admit the transcript pursuant to Rule 89(C) will not

16 preclude the Defence from cross-examining the witness. Considering the

17 conduct of the witness yesterday and the day before, the Chamber is

18 mindful that the witness may refuse to answer questions from the Defence.

19 Should this be the case, the Chamber will be open to admit, pursuant to

20 Rule 89(C), any documents or other items that any of the Defence teams

21 had intended to put to the witness in cross-examination but were unable

22 to do so because of his behaviour.

23 The Chamber also will take into account the extent to which the

24 witness was examined and cross-examined when determining the weight to be

25 given to the proposed transcript. For the foregoing reasons, the Chamber

Page 462

1 decides to admit the transcript of Shefqet Kabashi's testimony in the

2 Limaj case. The Chamber will request Madam Registrar to assign an

3 exhibit number to the admitted document.

4 Mr. Rogers.

5 MR. ROGERS: Your Honour, thank you. There are two e-court

6 references. The first one is 3047, which is the public redacted version

7 of the transcript, which should have the first exhibit number assigned to

8 it; and the other one is 3047.1, which is the unredacted transcript,

9 which should be admitted under seal, please.

10 JUDGE MOLOTO: Mr. Rogers, did you say other one is 3047.1?

11 MR. ROGERS: Yes, I believe that's right. Yes.

12 JUDGE MOLOTO: Okay. Okay. That does not refer to the exhibit

13 number.

14 MR. ROGERS: No.

15 JUDGE MOLOTO: Okay.

16 MR. ROGERS: Thank you.

17 JUDGE MOLOTO: Can we give them separate exhibit numbers,

18 Madam Registrar.

19 MR. EMMERSON: Your Honour, before --

20 JUDGE MOLOTO: Before he --

21 MR. EMMERSON: Well, before Your Honour formally admits them.

22 JUDGE MOLOTO: All right.

23 MR. EMMERSON: I would like, if I may, to ask you to rise for

24 approximately 15 minutes so that the Defence teams can consult as to

25 whether to make representations to you as to the continuance of the trial

Page 463

1 at this stage. In other words, we would like to consider amongst

2 ourselves whether to invite the Trial Chamber to pause with a view to

3 considering whether there ought to be an interlocutory appeal. That is a

4 matter which obviously we would need to consult amongst one another about

5 and obviously we haven't had Your Honours' decisional reasons and haven't

6 had an opportunity to do that.

7 There is another alternative possibility which is under

8 consideration which is that we may apply under Rule 89(D) for the

9 exclusion of the transcript that Your Honours currently propose to admit

10 once the evidence of this witness is concluded if it is to continue. It

11 may well be that matters occur hereafter which will form the basis of an

12 application under 89(D) to exclude. Now, it may be in those

13 circumstances once it has been marked and given its exhibit number

14 Your Honours will think it appropriate to have given the ruling but

15 formally to admit the transcript, if you are to do so, at the very end of

16 the witness's evidence.

17 I'm sorry if that sounds rather confusing. What I'm immediately

18 inviting Your Honours to do is to rise for a short time so that the

19 Defence teams can take instructions from their clients and to consult

20 amongst themselves as to what is the appropriate next step and to secure

21 the position by not formally admitting the transcript at this moment in

22 time because there may be further submissions to be made to this

23 Trial Chamber in the light of the way that the witness's evidence

24 hereafter progresses.

25 [Trial Chamber confers]

Page 464

1 JUDGE HALL: Mr. Emmerson, could you enlighten me as to -- you

2 made reference to 89(D), and unless I'm missing something the ruling that

3 the Chamber has just given would, I would have thought, have dealt with

4 that. Could you tell me what I'm missing, please.

5 MR. EMMERSON: Well, clearly no ruling on admissibility can be

6 immutable. Events may occur in the course of the remainder of this

7 witness's evidence which enable the Defence, entitle the Defence, to make

8 an application that an item of evidence be excluded. Now, it is

9 possible, I imagine, certainly in most jurisdictions for the

10 Trial Chamber to exclude evidence after it has been admitted, indeed in

11 the first trial that happened in relation to one witness who refused to

12 be cross-examined. The Trial Chamber took the view that his evidence

13 should be struck from the record and his evidence in chief was excluded.

14 I'm simply at this stage suggesting that it -- giving that timing

15 doesn't matter, giving that it can be formally admitted if the

16 Trial Chamber takes the view that that's the right course after the

17 witness's evidence --

18 JUDGE HALL: I think I now follow you, but that wouldn't prevent

19 what the Chamber has now ordered for the registrar to assign exhibit

20 numbers.

21 MR. EMMERSON: No, absolutely not.

22 JUDGE HALL: In other words --

23 MR. EMMERSON: Absolutely not. I'm simply saying there are two

24 ways in which a subsequent application might procedurally be considered

25 and ruled upon were the Trial Chamber of the view in due course that --

Page 465

1 JUDGE HALL: I now get you, Mr. Emmerson.

2 JUDGE MOLOTO: What I don't get, Mr. Emmerson, is the reason for

3 adjournment for 15 minutes. If the parties would like to take

4 instructions from their clients and appeal the decision, they can do so

5 even at the next break, but I don't seem to see why we should break right

6 now. It's not a matter of life and death.

7 MR. GUY-SMITH: Well, as a matter of fact, Your Honour, it's

8 certainly not a matter of life and death, but there's certainly no reason

9 to rush into the next portion of these proceedings. And I think it would

10 be prudent and responsible for Defence counsel to meet for a moment and

11 for Defence counsel to meet with their clients, considering that we just

12 received this decision and we had no way of knowing which way the Chamber

13 would rule on this issue. 15 minutes of time at this moment might save

14 us hours of time later, and clearly I think we all do appreciate that

15 this particular ruling is rather important with regard to the progress of

16 these particular proceedings. And I would -- I would -- if 15 minutes is

17 too much, then I would ask for 12.

18 JUDGE MOLOTO: I will give you 14 and a half.

19 Except, I just want to make this comment, I would like to know in

20 which jurisdiction counsel or parties ever do know in advance what a

21 decision of the Chamber is going to be?

22 We will rise for 15 minutes. Court adjourned.

23 --- Break taken at 9.48 a.m.

24 --- On resuming at 10.16 a.m.

25 JUDGE MOLOTO: Mr. Emmerson.

Page 466

1 MR. EMMERSON: Your Honour's just addressing me because I'm on my

2 feet?

3 JUDGE MOLOTO: Simply because you asked for the floor.

4 MR. EMMERSON: Yes, thank you very much. Thank you for the time

5 you allowed us. We have no representations or applications to make at

6 this moment in time and therefore the evidence of the witness can

7 continue.

8 JUDGE MOLOTO: Thank you so much.

9 Madam Registrar, can you please assign a number to the exhibit.

10 THE REGISTRAR: Your Honours, the redacted transcript,

11 65 ter 03047 will be Exhibit P119; and the full transcript 65 ter 03047.1

12 will be Exhibit P120 under seal.

13 JUDGE MOLOTO: Thank you so much, Madam Registrar.

14 Mr. Rogers.

15 MR. ROGERS: Thank you, Your Honours. May the witness be

16 re-called, please.

17 JUDGE MOLOTO: May the witness please be brought into court.

18 [The witness takes the stand]

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

20 THE WITNESS: Good morning.

21 JUDGE MOLOTO: Good morning. You may be seated, sir.

22 Yes, Mr. Rogers.

23 MR. ROGERS: Your Honour, in the light of Your Honours' ruling

24 and the admission of the Limaj transcript into evidence in this case,

25 Your Honours, in light of the past conduct of the witness and the

Page 469

1 MR. KARNAVAS: May I be excused, Mr. President, Your Honours?

2 JUDGE MOLOTO: You are excused, Mr. Karnavas.

3 MR. KARNAVAS: Thank you.

4 JUDGE MOLOTO: Travel well also to wherever your destination

5 might be.

6 [The witness withdrew]

7 Mr. Rogers.

8 MR. EMMERSON: I'm sorry, before Mr. Rogers continues, as I

9 indicated to Your Honours earlier on, an application is now being made

10 under Rule 89(D) for the exclusion of the transcript and I want, if I

11 may, to outline the reasons for that. There is then an alternative

12 application made under Rule 89(D) to exclude all portions of the

13 transcript other than the one that Mr. Rogers relied upon and that

14 Your Honours referred to concerning Skender Kuci and Pal Krasniqi. Can I

15 indicate what the basis for this application is?

16 First of all, we are dealing now with a situation where a witness

17 has refused to be cross-examined. The Defence have been deprived of the

18 opportunity of putting questions to him.

19 JUDGE MOLOTO: Deprived?

20 MR. EMMERSON: Certainly, by the witness. When a witness refuses

21 to answer questions or doesn't return for cross-examination, the Defence

22 are deprived of an essential fair trial right.

23 The position, if I can take the application on its broadest

24 footing first of all is that whilst it's right that this witness gave

25 evidence in the Limaj trial - I don't know whether Your Honours have had

Page 470

1 an opportunity yet to read the transcript - the vast bulk of it has

2 nothing whatsoever to do with Jabllanice and no questions were put by any

3 of the Defence counsel in the original Limaj trial concerning Jabllanice.

4 Jabllanice formed no part of the indictment against any of the Limaj

5 defendants and all questions that were put to this witness in

6 cross-examination by counsel, none of whom was representing any one of

7 these accused, concerned any of the matters that are relevant to this

8 trial. So the suggestion that -- upon which Your Honours appear to have

9 placed some weight, that the transcript had the additional authenticity

10 or validity that it had been subjected to cross-examination, has no

11 purchase whatever on those portions of the transcript which are relevant

12 to these proceedings. That's the first point.

13 The second point is that to deny or for the Defence to be denied

14 of the opportunity to cross-examine is a matter which strikes at the root

15 of fair trial rights. We are dealing here with a witness who on the

16 Prosecution's case - and indeed in the view of the Appeals Chamber - is

17 central. A witness of considerable importance. And it must be the case

18 that the fair trial rights of the accused, and in particular the right to

19 confront and effectively to cross-examine the witness, acquire even

20 greater importance when the witness is central in these proceedings; and

21 greater still where his testimony is uncorroborated. I'll come to the

22 question of corroboration in a moment.

23 The third principal point I'd like to make, if I may, is that in

24 the ruling Your Honours gave in principle, Your Honours indicated that

25 there had been answers given by the witness, indicating that the

Page 471

1 testimony he had given in Limaj was true. Your Honours did not

2 refer - and I simply remind you of it by reference - to all of the

3 passages from yesterday's testimony when the witness said the reverse.

4 That's page 424, lines 1 to 3; page 425, lines 10 to 15; page 425, lines

5 21 to 25, when the witness said in terms that he could not stand over his

6 testimony in Limaj and did not know now whether it was accurate and

7 reliable; and page 426, lines 5 to 9, when asked about whether it was

8 reliable, he says, "That is where the problem lies. I can't recall that

9 time."

10 Now, that being the case, the balance that Your Honours have

11 struck needs to be, we submit, attenuated. In the previous trial and for

12 these purposes I refer to this only because it is a ruling of law of a

13 Trial Chamber, not because it is a ruling of law in an earlier trial in

14 these proceedings, but a witness who was given the pseudonym 55 was

15 called and gave evidence in chief, was asked one or two foundation

16 questions in cross-examination, and his testimony was then adjourned.

17 Thereafter, he refused to return to be cross-examined. The Trial Chamber

18 conducted an examination of his medical fitness and concluded in the

19 event, particularly having regard to issues concerning his mental health,

20 that they would not order that he attend to be cross-examined and invited

21 submissions of the parties as to whether or not a fair trial, as

22 envisaged in Rule 89(D), required the exclusion of the testimony of the

23 witness, where the Defence were unable to complete an effective

24 cross-examination, notwithstanding, as here, that the witness had in fact

25 attended to give evidence.

Page 472

1 If I can just give Your Honours the reference, it's the reasons

2 for the Trial Chamber's decision to exclude the evidence of Witness 55

3 under Rule 89(D) and deny his testimony pursuant to 92 quater of the 14th

4 of December, 2007. So the question for the Trial Chamber was --

5 JUDGE MOLOTO: What's the case?

6 MR. EMMERSON: It's this case.

7 JUDGE MOLOTO: Oh, okay.

8 MR. EMMERSON: But, as I say, I rely on it not because it is this

9 case but because it is a ruling in analogous factual circumstances.

10 And the application of the Prosecution was that the evidence in

11 chief should remain on the record, notwithstanding the inability of the

12 Defence to cross-examine because the witness refused to return and

13 alternatively, that the transcript should be admitted pursuant to

14 Rule 92 quater on the grounds of the witness's mental health. Both

15 applications were refused, and if I can just read to Your Honours from

16 paragraph 10 of the decision.

17 "In considering whether to exclude the testimony of Witness 55,

18 the Chamber agreed with the Prosecution that Witness 55's testimony is

19 relevant to Haradinaj's alleged direct participation in crimes in the

20 joint criminal enterprise charged in the indictment, the alleged conflict

21 between the KLA and FARK, the command structure within the KLA during the

22 indictment period, and the alleged KLA use of the Lake Radoniq canal as a

23 dump site for bodies. The testimony therefore relates to central issues

24 in the case, including the acts and conduct of one of the accused and is

25 of a pivotal nature."

Page 473

1 Pausing there, this witness's testimony does not in fact concern

2 the acts and conduct of the accused of Mr. Haradinaj. The evidence that

3 you've just admitted makes no mention of any acts and conduct of

4 Mr. Haradinaj, but it does in relation to other accused. So it does

5 concern the acts and conduct of the accused.

6 "The testimony therefore relates to central issues in the case

7 including the acts and conduct of one of the accused of a pivotal nature.

8 The Chamber considers under these circumstances the lack of

9 cross-examination would mean that the probative value of the testimony is

10 substantially outweighed by the accused's right to a fair trial. Unless

11 the Chamber is satisfied as to the reliability of the witnesses's

12 testimony, and with there also being strong corroboration from other

13 witnesses as to the central allegation." And on the basis of the

14 application of that test, the witness's testimony was struck from the

15 record and the Prosecution's application under Rule 92 quater refused.

16 Now, in these proceedings, particularly if Your Honours were to

17 refresh your memories from the passages of the transcript I read -- I

18 identified just a moment ago, which didn't find mention in the ruling but

19 which go substantially against the proposition that this witness stands

20 over the detail of his testimony. Indeed, he said in terms to

21 Your Honours that he could not do that. That was his evidence yesterday.

22 There's simply no escaping from it. One cannot cherry-pick from one part

23 of the transcript and ignore the rest. On a fair reading of the

24 witness's testimony yesterday he was not prepared to say which parts, if

25 any, of the Limaj transcript were accurate and which were not. So we're

Page 474

1 left with a situation where he's not available for cross-examination.

2 There's no question, with the greatest of respect, of documents being put

3 to the witness as a substitute for cross-examination. It can't possibly

4 substitute for the right to confront and cross-examine just as the

5 documents that could have been put to the Witness 55 couldn't substitute

6 for it for the opportunity to confront and for the Trial Chamber to

7 evaluate.

8 The balance has now tipped decisively, we would say, in favour of

9 a fair trial. Rule 89(D) specifically requires the Chamber to balance

10 the probative value of the evidence against the fair trial rights of the

11 accused. Well, Your Honours haven't read the evidence, so it would be

12 difficult for you to yet have formed a view as to its probative value.

13 So that is an exercise Your Honours cannot yet have performed. So we are

14 going to invite you to reconsider in the light of those matters the

15 substance of the transcript.

16 Now, the position is this: Anything that does not have to do

17 with Jabllanice in the transcript is irrelevant. Its probative value is

18 nil in these proceedings. Anything which has to do with Jabllanice but

19 which is uncorroborated is also, given the witness's position, of very

20 limited probative weight. The only aspect of his testimony in the Limaj

21 case in which the Prosecution sought to rely and on which Your Honours

22 relied in the ruling that you just gave was the fact that the witness had

23 answered questions in Limaj about Skender Kuci and Pal Krasniqi but had

24 given different answers in these proceedings or none at all.

25 The allegations concerning Skender Kuci and Pal Krasniqi are

Page 475

1 supported by other evidence. To that extent, that part of this witness's

2 testimony in Limaj is capable of some corroboration. But anything

3 extending outside of that is of minimal or no probative value when

4 weighed against, first, a fair reading of yesterday's transcript and what

5 the witness said about his ability to stand over it; and secondly, the

6 absolute denial of any opportunity to cross-examine.

7 And so we would respectfully invite Your Honours to perform the

8 exercise which, as a matter of logic, you cannot yet have performed,

9 namely, to evaluate what really is the probative value of this material.

10 And we would submit that weighed against the unfairness to the accused,

11 it is as a whole outweighed and should be excluded under 89(D); or in the

12 alternative, that the only passages that should be included, and I can

13 give you the references for them in just a moment, they would be 4255 to

14 4260 private session in the transcript are those which relate to those

15 two witnesses, the basis of the application, and the basis of

16 Your Honours' ruling, and that the remainder of the transcript in the

17 alternative should be excluded.

18 JUDGE MOLOTO: Just one question, Mr. Emmerson, before you sit

19 down. In -- you've referred to Witness 55 in this -- in this case --

20 MR. EMMERSON: Yes.

21 JUDGE MOLOTO: -- in the previous proceedings. Did you have

22 opportunity to look at the Martic trial record with respect to the

23 testimony of Milan Babic?

24 MR. EMMERSON: No, but I can do certainly.

25 JUDGE MOLOTO: I invite you to do so.

Page 476

1 MR. EMMERSON: Yes, well, I'm -- may I invite Your Honours to

2 consider the decision in these proceedings in relation to Witness 5 --

3 55.

4 JUDGE MOLOTO: Thank you so much.

5 MR. EMMERSON: But obviously, each case in the end is going to

6 turn on its facts. What I take from that decision is that if the more

7 important and relevant the evidence, the greater the injustice of denying

8 cross-examination, first of all. Secondly, that in the absence of

9 corroboration of the testimony, denial of cross-examination will be

10 decisive for the fairness of the proceedings. Those are principles, not

11 applications to the facts. Applying them to these facts you only have

12 one passage of this evidence, which is relevant, directly probative, and

13 corroborated, and it's the passage that Mr. Rogers relied on and the

14 passage that Your Honours relied on without having read the transcript

15 first. There is a vast amount of material that cannot begin to cross the

16 threshold of probative weight which would enable it to be sufficient to

17 outweigh the unfairness to the accused.

18 JUDGE MOLOTO: Thank you so, Mr. Emmerson.

19 Mr. Rogers.

20 MR. GUY-SMITH: Excuse me.

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

22 MR. GUY-SMITH: I would join in the remarks that have just been

23 made by Mr. Emmerson. I would also highlight that cross-examination is a

24 minimum guaranteed right under our Statute, Article 21(iv)(e) under the

25 ICCPR, the International Covenant of Civil and Political Rights,

Page 477

1 Article 14(iii)(e); and the European Convention on Human Rights,

2 Article 6(iii)(d). The recognition of the importance of

3 cross-examination in order to obtain in the crucible of the trial the

4 truth requires not only the ability for the party to be able to engage in

5 cross-examination and which we have not had, but also it's important

6 because it allows the fact-finder, Your Honours, in this particular

7 situation to have a full and complete record and understanding of that

8 testimony, which you do not have.

9 With regard to Babic, I think there are two things and I'm not --

10 you said Martic and I went straight to Babic.

11 JUDGE MOLOTO: I did say Babic, I said the testimony of Babic in

12 the Martic case.

13 MR. GUY-SMITH: A case which I believe you are intimately

14 familiar with.

15 JUDGE MOLOTO: Not so quite.

16 MR. GUY-SMITH: If I recall -- and if memory fails me then I do

17 apologise, but just briefly and if it needs further discussion I'm happy

18 to have that at a later point in time. If I recall, there was the

19 ability in that case for some specific, focused examination by counsel of

20 the witness concerning his testimony which was truncated as a result of

21 his death. The application for the inclusion of Mr. Babic's testimony,

22 as I recall, was made under 92 quater, if I'm not mistaken, and there

23 were some considerations by virtue of the fact it was made under that

24 particular rule, that particular lex specialis rule, that also impacted

25 upon the Chamber's decision.

Page 478

1 But most importantly what has -- what existed there and what does

2 not exist here and what the Limaj transcript makes abundantly clear,

3 which I think is in contrast to what was said in today's decision, I

4 believe was on page 9 - I could be mistaken - is that counsel had some

5 ability to engage in a focused cross-examination of the issues that were

6 germane to that case. And as Mr. Rogers indicated, as I mentioned the

7 other day, Limaj was focused on entirely different issues. It was not

8 focused on the issue of Jabllanice. Counsel in that case was neither

9 instructed nor attentive to the issues of Jabllanice because they did not

10 factor into the Limaj case. To foreclose -- to be in a situation where

11 cross-examination is effectively foreclosed and to entertain this

12 particular evidence, in my submission, is fundamentally unfair. It

13 strikes at the foundation stones of a system of justice. And by

14 "foundation stones" I mean that in an institutional sense to proceed down

15 this line and to not the exclude this evidence is exceedingly dangerous,

16 not only in this case but also with regard to the evolution of

17 international law.

18 JUDGE MOLOTO: Just before you sit down, Mr. Guy-Smith, could you

19 make yourself quite clear, like Mr. Emmerson did, do you want the

20 exclusion of the entire evidence or do you want the exclusion of a

21 portion of the evidence that is -- that you would say is irrelevant to

22 these proceedings but for the evidence relating to Pal Krasniqi and Kuci?

23 MR. GUY-SMITH: I join in the remarks that were made by

24 Mr. Emmerson specifically in that regard.

25 JUDGE MOLOTO: Thank you so much.

Page 479

1 Mr. Harvey.

2 MR. HARVEY: Your Honour, I also join in all of the remarks made

3 by both Mr. Emmerson and Mr. Guy-Smith. I would add this just, if I may,

4 to remind the Trial Chamber, that Mr. Brahimaj does not stand before you

5 in relation to either Mr. Skender Kuci or Pal Krasniqi. I just make that

6 point. I know it's much in your minds. That the transcripts that are

7 now P119 and P120 are of evidence taken before any of these three accused

8 appeared before this Court, and therefore none of them had representation

9 at that time. No representations could have been made on their behalf in

10 relation to evidence that might affect them. I am not even sure if they

11 had been arrested at that time. I think they were arrested -- they were

12 certainly arrested in that month, but I don't believe they had actually

13 been arrested at the date of those transcripts.

14 But I don't wish to add anything to what has been said. I wish

15 to adopt everything that Mr. Emmerson said in relation to the

16 admissibility and relevance of those transcripts under 89(D). I would

17 just because there is an error in the transcript of today's argument

18 before Your Honours, Mr. Emmerson at page 20, line 13 is correctly quoted

19 as saying: Pausing there, this witness's testimony, that's Mr. Kabashi

20 in Limaj, does not in fact concern the acts and conduct of the accused

21 Mr. Haradinaj, that's correct, but the next sentence is not. The next

22 sentence reads: It does not make any mention of the acts and conduct of

23 the accused. As you will recall, I believe Mr. Emmerson clearly stated

24 the testimony does make mention of the acts and conduct of the other two

25 accused. So it does have --

Page 480

1 JUDGE MOLOTO: Can you give that reference again, please?

2 MR. HARVEY: Page 20 today, lines 13 to 15. I hope that makes

3 matters clear.

4 MR. GUY-SMITH: Excuse me, if I might, I want to correct myself

5 because I said 92 quater with regard to the Babic situation and I was

6 incorrect. And knowing the way things are going right now, I want to

7 make sure I have not made a misrepresentation to the Chamber. As I

8 understand it it was made under 89(C) and (D).

9 JUDGE MOLOTO: We understand that we do make mistakes.

10 MR. GUY-SMITH: I would point out with regard to that decision at

11 paragraph 70 the following was stated:

12 "The Trial Chamber knows that Milan Babic testified for

13 approximately 25 hours in court under oath in the presence of the

14 accused. His cross-examination lasted approximately 10.5 hours. The

15 Trial Chamber finds that the completed cross-examination up to the date

16 of death was sufficient for the Trial Chamber to fairly judge the

17 credibility and reliability of Milan Babic as a witness."

18 Those factors are non-existent in this case at this time.

19 MR. EMMERSON: And, Your Honour, can I just clarify Mr. Harvey's

20 point in case there should be any misunderstanding about it what I

21 thought I had said and certainly what the position is, and I think we can

22 all agree on this, is that the testimony that you have just considered

23 and ruled upon the admission of and about which this present application

24 is made, makes no allegations concerning the acts and conduct of

25 Mr. Haradinaj but does make allegations concerning the acts and conduct

Page 481

1 of Mr. Balaj and Mr. Brahimaj.

2 MR. GUY-SMITH: Well, that's not -- that's not specifically

3 correct, and to the extent that -- to the extent that -- I would not

4 disagree with Mr. Emmerson as it relates to Mr. Haradinaj. I would

5 disagree with Mr. Emmerson as it relates to Mr. Balaj because once you

6 read it you will see that it is made in a generalised sense without there

7 being any specificity as to any particular individual.

8 MR. EMMERSON: Perhaps I should correct myself to this extent.

9 There is no dispute that the testimony makes specific reference to the

10 acts and conduct of Mr. Brahimaj, and to that extent it concerns the acts

11 and conduct of the accused. That's correct.

12 JUDGE MOLOTO: I just wanted to find out if counsel would not

13 want to have a short adjournment just to make sure that they're at one on

14 what representations have to be made.

15 MR. HARVEY: I think we are at one. There is limited reference

16 to Mr. Brahimaj. Of course he was not represented in those proceedings.

17 There was no cross-examination in relation to him whatsoever. There was

18 no cross-examination in relation to Jabllanice. There is a limited

19 reference to his presence and by implication acts and conduct. I think

20 that's as far as it can go and I think we're all agreed on that.

21 JUDGE MOLOTO: Thank you.

22 MR. HARVEY: Thank you, Your Honour.

23 JUDGE MOLOTO: Thank you very much, Mr. Harvey.

24 Mr. Rogers, do you have anything to contribute to the debate?

25 MR. ROGERS: Well, I hope so, Your Honour. Whether you find it a

Page 482

1 useful contribution of course will be a matter for Your Honours in due

2 course. Yes, I do. The application is made under Rule 89(D), and it's

3 on the basis that the Chamber may exclude evidence if its probative value

4 is substantially outweighed by the need to have a fair trial.

5 My learned friends mount their challenge on two bases. First,

6 they say that there is no probative value to this material, and secondly,

7 they say it's unfair to them to admit it, it having already been

8 admitted, because they have no right to cross-examine. They do have a

9 right to cross-examine. The fundamental basis --

10 JUDGE MOLOTO: Let's not misrepresent, Mr. Rogers. They don't

11 say they don't have the right to cross-examine --

12 MR. ROGERS: [Overlapping speakers] --

13 JUDGE MOLOTO: [Overlapping speakers] -- they said they were

14 precluded, foreclosed, if I might use Mr. Guy-Smith's phrase, term, from

15 cross-examining by the disposition of the witness.

16 MR. ROGERS: Yes, but effectively --

17 JUDGE MOLOTO: But the right they have, and they did exercise it.

18 They asked him one question each.

19 MR. ROGERS: Yes, and they say because they -- the witness

20 answered in a single way that that meant effectively they had no

21 effective right to cross-examine. It's a denial by the witness of the

22 right to cross-examine. Your Honours, that's simply not the case. My

23 learned friends have an opportunity, if they wished, to explore with the

24 witness further the reasons for his wish not to continue to testify, the

25 basis for that, and to test them to such extent as they considered

Page 483

1 appropriate on any of the matters contained in the Limaj trial and to

2 elicit from him such answers as he was or was not prepared to give.

3 My learned friends have chosen instead - and it's entirely a

4 matter for them how they wish to conduct their cross-examinations - but

5 they've chosen to answer a single question -- ask a single question:

6 "You told Mr. Rogers that you felt unable to answer any further

7 questions about the events in 1998, not that you didn't want to, but you

8 felt that you were unable to answer questions. Does that remain your

9 position?

10 "A. Yes."

11 That's Mr. Emmerson at page 14, lines 23, to page 15, line 2.

12 And they meekly, respectfully, accept that answer. They don't take any

13 attempt to go further with it. I accept that he -- the witness simply

14 says, "I feel unable to answer the questions," and they sit down.

15 Your Honours, they haven't been deprived of the right to carry

16 out an effective examination. They have simply chosen to accept the

17 witness's answer, and that is not the same thing at all.

18 My learned friends refer to answers given when they then move I

19 think to deal with the probative value. To say that there was no

20 probative value in the evidence of this witness relating to the Limaj

21 trial because in answers to questions yesterday - and they cite to you a

22 fairly -- a number of portions of transcript only from yesterday - he

23 said that he couldn't now make a difference between 2005 and 2011. I'm

24 particularly looking at 425, the transcript references at pages 10 -- at

25 lines 10 to 15; and also 21 to 25.

Page 484

1 Your Honours will recall from the debate yesterday, this is an

2 argument we had yesterday about this very matter, my submissions to you

3 yesterday were - and remain the same - the witness is not saying what he

4 said in 2005 was wrong; but merely that he can't now today remember how

5 things were then.

6 And then my learned friend I think referred to 425 -- sorry, 426,

7 transcript lines 5 to 9, to suggest that it was beyond any doubt that the

8 witness was not prepared to stand by his testimony. I don't have the

9 precise quote and you'll forgive me if I paraphrase. But what that

10 portion of the transcript says is this in answer to my question, perhaps

11 I'll read the whole thing, lines 1 to 9:

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

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

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

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

16 He says:

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

18 tell between the time and the present time. I did my best, I hope -- I

19 think to tell the truth because I don't -- I'm not used to lying. But

20 now I'm really not in the state of mind to clarify things properly."

21 And when one takes that with what he said previously in testimony

22 2 -- transcript 385 in answer to my question, very simple question, line

23 25:

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

25 testified before the Court then?

Page 485

1 "A. Yes, on my evidence there, yes.

2 "Q. What you said to that Trial Chamber was the truth, was it,

3 Mr. Kabashi?

4 "A. Yes. On my evidence before the court of law, yes, from what

5 I recall."

6 Your Honours, you also have to bear in mind the progression of

7 the examination, and I think respectfully that is relevant. Questions of

8 recollection arose during the course of that examination, and you will

9 remember that this was not just about whether he remembered events but

10 his whole demeanour and his whole manner would tend to suggest he had a

11 variety of reasons as to why he was not prepared to testify. There are a

12 legion, in fact, and remembering was only a small part of that, in our

13 submission, and came right at the very end. And whether it is or is not

14 true that he could or could not remember is a matter that has not been

15 explored by the Defence. They had the opportunity to do that, should

16 they so wish, but they did not. They simply accepted what he said.

17 Because it's in their interests, certainly in the interests of Mr. Balaj

18 and Mr. Harvey on one view - and it's not for me to tell them how to

19 conduct their cases, but on one view - to test what Mr. Kabashi had to

20 say about their clients in the Limaj case, as to whether what he said

21 there was true or not. But they have chosen simply to accept that he

22 feels unable to answer any questions. That is not a denial of the right

23 and the exercise of a right to cross-examination or the exercise of a

24 fair trial; it's simply a tactical decision that was made in the best

25 interests of their clients at the time they made it. But objectively

Page 486

1 they have got and have had the opportunity to deal with this witness in

2 any such way as they see fit, but they've chosen to simply accept what he

3 said. He is there, he did answer some questions during the course of his

4 examination-in-chief, not many I accept, but he did answer some.

5 And as I've said, the demeanour of the witness would tend to

6 suggest on one view that perhaps there were multiple reasons as to why he

7 didn't want to testify.

8 Your Honours, I can deal with some of those perhaps because

9 this -- this application by the Defence is mounted on the supposition

10 that that answer that he didn't remember is correct, should be accepted;

11 and therefore, their right to a fair trial has been effectively denied

12 because the man can't remember anything so they can't ask him any

13 questions about it.

14 I put it in the course of oral argument in a global way. My

15 learned friends may object to the way I've put it --

16 MR. EMMERSON: It's simply not correct to suggest that we are

17 asserting that the witness was necessarily telling the truth --

18 JUDGE MOLOTO: Let him finish. You will reply if you want to.

19 MR. ROGERS: Your Honours will recall, as the examination

20 progressed, first of all the witness was trying to control questioning to

21 some extent during the course of his examination, it began very early,

22 transcript 334. It made Your Honours ask the question about his

23 ethnicity. At the very beginning he had already begun to want to control

24 what was happening. 342, line 11: "Get to the point. What do you want

25 to know from me?" 343: "Don't beat about the bush." 356: "I won't

Page 487

1 allow you to ask questions. If you send me to prison, don't ask me any

2 questions."

3 He then had a whole series of statements during the course of his

4 evidence where he demanded that there be no further questions of him,

5 long before we get to memory issues.

6 "I have no reason to answer your questions and you know why."

7 T-355.

8 337: "May the gentleman on the right ask no further questions

9 because I've got no answers to give."

10 339: "Why should I answer? What's the goal?"

11 344:

12 "Q. Who was in charge of the group?

13 "A. Will you tell me first why I was imprisoned here" -- Sorry.

14 "Will you first tell me why I was imprisoned."

15 358, lines 9 to 11:

16 "I can state here there is no justice at all. Don't ask me to

17 answer questions, this is rubbish. What you're dealing with is

18 absolutely rubbish."

19 Line 18: "There is no justice as I can see. Take me to prison

20 and keep me there if you like."

21 393: "Why should I feel obligated to answer it?" After

22 Your Honour told him to answer a question.

23 He was evasive and unwilling. Showing him the maps, Your Honour

24 will recall answers like he had a poor schooling and wasn't good at

25 reading maps, the clearest possible indication of the town, he couldn't

Page 488

1 even identify that. He demanded to know why others weren't being

2 prosecuted or investigated. "Your investigators are worse than Serbs,"

3 he said, T-355.

4 Your Honours will remember pages of rant, if I can put it in the

5 vernacular.

6 "You've done more committed crimes with your deeds." That's 356.

7 359: "You're the ones who ought to know. You're the ones who

8 ought to have investigated. You ought to have worked."

9 392: "There are many many other things that have been

10 disregarded, have not been investigated to come to justice," at which

11 point Your Honour intervened and told him to stop. It wasn't his remit

12 to inquire of the Prosecution why they had done what they had done,

13 ordered him to answer the question and at page 393 still does not answer

14 the question.

15 And then he got to Mr. Kuci at 381, he said:

16 "I cannot answer this question. It's not that I don't wish but I

17 can't."

18 392:

19 "He's now too late to speak about these things in my view. He's

20 meaningless to talk about these things now."

21 He's offering all the time his opinions about why he thinks what

22 he thinks about the process, whether he's prepared to continue to answer

23 questions. He gives a speech at T-397 after I'd again tried to get him

24 to speak about Skender Kuci and Pal Krasniqi, referring to persons

25 disappeared. T-400, he said to testify "was beyond me to do it."

Page 489

1 401: "There's nothing more I can add to this trial, it's beyond

2 me, it's impossible, I apologise for that."

3 T-401, lines 14 to 15, after I asked him is he prepared to answer

4 my questions, he said: "If I could I would do willingly but I cannot, I

5 really cannot. I don't see any reason why."

6 T-401, asked whether Limaj was true he just said:

7 "I'm unable to discuss this issue further nor to answer more than

8 I have done so far."

9 And then at T-402:

10 "I already stated it's not that I am unable -- it's not that I'm

11 unwilling to reply to your questions but I'm unable to answer any other

12 question and I cannot provide any more assistance to this Chamber. It's

13 inside me."

14 T-402, he carries on:

15 "If the trial is here to do justice, to discover crimes and

16 Prosecutor's office has done nothing, then why do you involve me? I'm a

17 very insignificant player. I won't make any difference. I'm unable to

18 speak about these things."

19 And, Your Honours, at T-405, line 12, this:

20 "No, I'm not afraid. But I am unable to testify. It's not a

21 matter of fear. It's something inside of me, a feeling I have inside of

22 myself, something that keeps you alive or makes you go on living in the

23 place you live. There are many things that prevent me. I'm trying. I'm

24 doing my best, but I can't. I don't see any right somewhere prevailing

25 somewhere to give me a reason why. That's why I am not testifying. I

Page 490

1 said what I wanted to say," he goes on, "I don't think I can say

2 something else."

3 Your Honours, it appears that this witness has within him --

4 inside himself on one view what appears to be a moral compass that is not

5 permitting him, for whatever reason, to speak. That may be one view.

6 There may be other reasons, but it is not as simple as my learned

7 friend's suggesting he just can't remember.

8 There are multiple reasons. My learned friends have

9 tactically - and I understand why, we all make tactical

10 decisions - chosen not to question the witness. They have and have had

11 an effective right and they have chosen to use it the way that they have.

12 To meekly accept was their choice, but it's not right to say that the

13 only reason this witness is unable to speak is because he alleges that

14 his memory is failing.

15 Your Honours, for those reasons my learned friends' application

16 should be dismissed. First of all, the material that his -- that he

17 provides within the Limaj transcript deals directly with the issues that

18 Your Honour is facing -- Your Honours are facing, as Your Honours have

19 already recognised in the, quite correctly, if I may respectfully say, in

20 the decision that you have issued. The basis for exclusion would be the

21 rights -- balancing that probative value against the rights to a fair

22 trial. And, Your Honours, we say that fair trial has been safe-guarded,

23 is safe-guarded, and continues to be safe-guarded. The fact that the

24 defendants act the way they do through their counsel is entirely a matter

25 for them.

Page 491

1 Your Honours, so far as the reference to the Witness 55 decision

2 is concerned is simply not relevant in our submission, it's on a

3 completely different point. It's a witness that started and didn't come

4 back for cross-examination. This is not this case. The witness was

5 there, in this courtroom, facing Your Honours, ready and able to be

6 questioned; but my learned friends chose to act the way that they did.

7 Your Honours, unless I can help you further, those are my submissions.

8 JUDGE MOLOTO: Thank you so much, Mr. Rogers.

9 Yes, Mr. Emmerson.

10 MR. EMMERSON: Your Honours, first of all Your Honours have sat

11 through these proceedings in relation to this witness and Your Honours

12 will be aware of the background, of the history in front of Judge Orie,

13 of what was described as the endless continuing story of this witness,

14 his refusal to testify --

15 JUDGE MOLOTO: Let me just remind you, I'm personally not aware

16 of what took place before Judge Orie.

17 MR. EMMERSON: It's in the Appeals Chamber judgement that ordered

18 this re-trial. This was a witness who was brought before the Court on

19 several occasions and took the same sort of positions that he was taking

20 here. In other words, he was not going to answer any substantive

21 questions for a variety of different given reasons, other than fear. And

22 it's certainly not the case that the Defence application under Rule 89(D)

23 is premised on the proposition that this witness is telling the truth

24 when he says that he can't remember. That may be part of his reason,

25 there may be other reasons. Mr. Rogers would have it that he accepted

Page 492

1 that he had a moral compass which doesn't permit him to testify.

2 Be that as it may, we all saw what happens to Mr. Rogers's

3 attempts to get him to testify. He was not going to answer questions.

4 Although he answered one or two at the beginning, as Mr. Rogers says you

5 need to look at the progress of his examination, but the time we were

6 more than half an hour in, every attempt by Mr. Rogers to ask him to

7 engage at all with the facts was met with an answer which concluded with

8 the statement: I am not prepared to answer your questions.

9 I haven't counted the number of times the witness said: I am not

10 prepared to answer, but we all know that they are legion. It is fanciful

11 to suggest that were the Defence to attempt to cross-examine in the face

12 of that and in the face of the clear statement of the witness that he was

13 maintaining that position this morning when Defence counsel rose to

14 cross-examine him, that we would have had anything more than the useless

15 fanciful charade that went on when Mr. Rogers continued to press in the

16 face of the witness refusing to answer. The suggestion that we meekly

17 accept his assertion that he does not wish to testify is an absurd one.

18 This is a witness who has committed and has been for years not to testify

19 as to the substance. And it would be a fanciful distortion of what took

20 place in this courtroom over the last few days to suggest that what the

21 Defence did was anything other than what any responsible practitioner in

22 this situation would do, which is to establish that the position he'd

23 taken with Mr. Rogers as Prosecutor was the same position that he was

24 going to take this morning when being cross-examined; and if it was, his

25 position is: I am not going to testify. That is the situation that the

Page 493

1 court is faced with and anything other than a full recognition of that

2 and an honest recognition of it would be a transparent distortion of what

3 took place. These are not tactics. There comes a point when you draw a

4 line. There is no point in me doing what Mr. Rogers had done, and then

5 Mr. Harvey has do it and Mr. Guy-Smith, over and over and over again.

6 Will you testify? No I won't. Will you testify? No I won't. It's

7 pointless. That's the first thing.

8 Secondly, what Mr. Rogers seems to be saying to you is that the

9 witness was lying about his reasons in part. Yesterday he said to you in

10 unequivocal terms that it was clear that the witness was having trouble

11 with his recollection. That was the basis of the application that

12 Mr. Rogers made yesterday --

13 MR. ROGERS: My learned friend knows that I said considerably

14 more immediately after that and he should read into the transcript the

15 whole of what I said which follows on directly from it so that it's clear

16 that that isn't exactly what I said. That's part and I made it very

17 clear what I said.

18 MR. EMMERSON: He went on to say there may well be other reasons,

19 but his primary position and the reason he asked Your Honours for the

20 admission of the transcript was because it was clear, he said, that the

21 witness was having difficulty recollecting. Well, it can't be clear and

22 false at the same time. So the position is, says Mr. Rogers: Now I

23 would like Your Honours to conclude that when he said that he was having

24 difficulties recollecting, he's a liar. We take no position on that.

25 Mr. Rogers can jump from one position to the other with a great fleetness

Page 494

1 of foot, but we take no position on it. You don't have to make a finding

2 on that one way or another. But what we do respectfully submit is that

3 Your Honours do need to grapple in the reasons and the ruling that you

4 give with the answers that this witness gave yesterday in transcripts 424

5 to 426. And if Your Honours take the view that he was -- in doing those

6 passages giving an account that he could not stand over his Limaj

7 testimony -- because that's exactly what he says. He says:

8 "I'm not in a position to give you an accurate answer as to

9 whether what he said was right. I don't want to make mistakes because

10 they will get me into more trouble. That's the problem --

11 JUDGE MOLOTO: Can I ask you a question, Mr. Emmerson?

12 MR. EMMERSON: Yes.

13 JUDGE MOLOTO: You keep referring to that point. Is it your

14 position that the statements that the witness made yesterday and

15 through -- during these proceedings about what he thinks of his testimony

16 in the Limaj trial are supposed to be determinative of the probative

17 value of that testimony?

18 MR. EMMERSON: No, but Your Honours have cited an answer that he

19 gave in your ruling -- a series of answers that he gave the day before --

20 JUDGE MOLOTO: Sure --

21 MR. EMMERSON: With respect, if I may answer your question, in

22 which Mr. Rogers put it to him was what you said true and he said yes.

23 That is with the greatest respect an incomplete statement of the

24 witness's testimony --

25 JUDGE MOLOTO: I accept that --

Page 495

1 MR. EMMERSON: I'm glad Your Honour does --

2 JUDGE MOLOTO: You will also remember that in the decision, the

3 decision says he accepted that it was true in that trial and also said so

4 in this trial --

5 MR. EMMERSON: Yes, but with respect, he doesn't say that in this

6 trial. On a fair reading of his evidence as a whole - and the passages

7 that Your Honours did not refer to in the ruling - he significantly

8 undermines that by saying he cannot say whether what he said in the Limaj

9 case is true or reliable. He says it in terms. It's in black and white

10 on the transcript.

11 JUDGE MOLOTO: But here's my question to you: Are you saying

12 what he says today affects the probative value of the testimony?

13 MR. EMMERSON: No, Your Honour --

14 JUDGE MOLOTO: -- or is it what he said then?

15 MR. EMMERSON: No, Your Honour, what affects the probative value

16 of the testimony is that Your Honours have relied on a statement from him

17 in these proceedings that the testimony in Limaj --

18 JUDGE MOLOTO: But it's coupled with a statement he made to the

19 Limaj trial when he made the declaration and he answered the question.

20 MR. EMMERSON: I understand that but he is now saying I do not

21 know which parts of that testimony, if any, can be relied on. That's

22 what he says in the transcript in page 424 to 426. Now, you may take the

23 view he's lying when he says that. You may take the view he has other

24 reasons and he's lying. In which case say so in your ruling, because

25 that also is a conclusion that goes to the probative weight to be

Page 496

1 attached to his evidence if he's lied before you on oath. With the

2 greatest of respect what Your Honours cannot do is to avoid addressing

3 the answers that the witness gave which fundamentally undermine reliance

4 on that transcript. You can't avoid addressing the question because it

5 goes to his credibility. Either way. Either he was telling you the

6 truth yesterday when he said: I can't remember whether what I told the

7 Limaj court was true or false; or he's lying to you. But either way you

8 can't avoid making a finding on that when you're concluding what

9 probative weight you should attach to the Limaj transcript. It goes

10 directly to it.

11 So with the greatest respect there's an issue Your Honours need

12 to grapple with and determine in the course of dealing with the 89(D)

13 application. And I mean, were this matter to be considered further, it

14 would obviously be of great assistance for the Appeals Chamber to know

15 how Your Honours viewed those words and those qualifications, otherwise

16 we would be speculating on what weight you'd attached to them and how

17 you'd come to the conclusion that you had.

18 So we would, with the greatest of respect, ask Your Honours to

19 address that part of the transcript because it is so obviously germane to

20 an evaluation of the witness's previous testimony's probative value that

21 no proper assessment can be made under 89(D) without you having done it.

22 Now, I recognise that it is possible for Your Honours to have

23 made the decision in principle under 89(C) without reading the Limaj

24 transcript because all that needs to be satisfied under 89(C) is that the

25 evidence is relevant and probative, and you have been told by Mr. Rogers

Page 497

1 that it has reference to the Skender Kuci and Pal Krasniqi issue and on

2 that basis you decided it was relevant and probative. But 89(D) requires

3 you to conduct a relative evaluation on how probative it is and you can't

4 possibly do that without having got to grips with the detail of the

5 transcript and knowing what it is he actually said. And once you have

6 done that, you will see it's a tiny proportion of that evidence that

7 concerns this trial at all and that proportion of it was never the

8 subject of testing or cross-examination.

9 So, with respect, Your Honours now need, because 89(C) and 89(D)

10 are different exercises; 89(D) requires you to actually decide how

11 probative this material is and whether its probative weight is outweighed

12 by the unfairness to the accused, that's something which, in order to do

13 it properly, it's going to be necessary to consider which passages the

14 Prosecution truly rely upon, for what they rely upon them, whether they

15 are corroborated by other evidence in the case, what unfairness there is

16 to the accused, and how to approach the testimony that the witness gave

17 about his real reasons. And in particular, the testimony that he gave

18 yesterday. And we would, as I say, invite Your Honours not simply to

19 ignore those answers but to address them. Either you accept them or you

20 reject them. If you accept them, they undermine the probative weight;

21 and you reject them, then he was lying on oath, and that undermines the

22 probative weight of it as well.

23 We are in very dangerous territory here, in my respectful

24 submission, and the only part of that transcript which is capable of

25 corroboration is the passage originally relied upon by the Prosecution in

Page 498

1 the first trial, which is pages 4255 to 4260, which are the passages that

2 deal with Skender Kuci and Pal Krasniqi. We would respectfully submit

3 that even they fail the test of appropriate balance under Rule 89(D) but

4 certainly anything going beyond that must do.

5 Can I finally say this, Mr. Rogers didn't even address the

6 question of probative value other than to just assert the Limaj

7 transcript is probative. In the original trial the Prosecution was

8 required to and did give a list of the page references that touched upon

9 the issues in this trial, for obvious reasons, because that case was

10 nothing to do with Jabllanice. It was a totally different area of

11 Kosovo. And so it concerns a large amount of irrelevant material. It

12 must be the case that those pages fall to be excluded under Rule 89(D)

13 because they have no probative weight in these proceedings. They were

14 never even relied on by the Prosecution in the first trial. And of the

15 passages that were relied on, the only one with any corroboration, any

16 independent evidence, is that the -- the passage that I've cited. And,

17 Your Honours, we do respectfully submit in those circumstances that the

18 balance is very, very squarely tipped in favour of exclusion, a decision

19 that Your Honours can't properly evaluate without looking at the

20 material, find out which passages Mr. Rogers says crossed the high

21 probative threshold, where he says there's corroboration, and consider

22 balancing that against this witness's actual testimony yesterday about

23 what he was prepared to stand over in the Limaj trial. And the bottom

24 line is he wasn't prepared to say which parts of it he could stand over

25 and which parts of it he couldn't.

Page 499

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

2 MR. GUY-SMITH: Yes. Once again for purposes of brevity, I join

3 in Mr. Emmerson's remarks. Given the history of this litigation and

4 specifically referring to the Appeals Chamber decision in which this

5 issue came up again, the suggestion that we bang upon a witness, a

6 witness who has also indicated - and whether or not it's true or not, I

7 don't know - but has indicated that he feels a victim with some

8 sensitivity we have shown to people who do come into these courtrooms and

9 discuss being victims, the notion that we bang upon a witness in order to

10 get no answers, as we saw occur here for a day, not only I think is --

11 would be irresponsible from the standpoint of defending my client, but

12 that is also ludicrous in terms of any argument that we would be able to

13 obtain anything other than the answers that he gave.

14 I am a bit concerned about one focus of Mr. Rogers's remarks,

15 which he seems to be moving the argument into a question of what

16 Mr. Kabashi remembered and that our application is based on a failure of

17 memory. It is not a question of memory. That is one of the aspects of

18 what occurred here. This gentleman made himself absolutely clear, and

19 that clarity was as follows. And I am taking one part of an answer that

20 he gave.

21 "I did my best I hope ..."

22 That's speculative --

23 MR. ROGERS: Can we have the reference, Your Honour.

24 MR. GUY-SMITH: That's page 426, this is the passage that we've

25 been through again and again and again, this is lines 1 through 9,

Page 500

1 starting at line 6 -- well, I'll start at line 5, I'll give -- read the

2 whole answer.

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

4 can't tell between that time and the present time ..."

5 That could be a function of memory, that could be a function of

6 cognitive dissonance. We have no way of knowing.

7 "I did my best ..."

8 As to what?

9 "I hope ..."

10 Very well. As to what? He hopes he did his best as to what?

11 " ... I think to tell the truth because I don't ..."

12 "I did my best, I hope -- I think" -- his words, not my words.

13 The difference of course being that I'm placing a different emphasis on

14 them for the moment, but therein lies the rub because you don't have a

15 clear answer to what's going on with this witness.

16 "I'm not used to lying ..."

17 Well, who is? Whenever in this courtroom have any of you heard

18 anybody saying: I'm used to lying? You haven't. And most probably in

19 your experience as Judges, the idea that somebody walks in and says:

20 Well, I'm used to lying, that's what I do as a matter of course, that's

21 the behaviour that I engage in, it's something that you haven't heard.

22 If you have, then I find that that would be an extremely unique

23 situation, and perhaps you have.

24 "But now I really am not in that state of mind as to clarify

25 things properly ..."

Page 501

1 That has nothing to do with memory. That has nothing to do with

2 anything other than whatever his internal mechanisms are - which we won't

3 know, although there have been some allusions to some medical

4 difficulties, whether they be the case or not, I don't know. And what we

5 are left with is a witness who refuses to testify. But his -- but his

6 refusal - the manner in which it comes - is that he indicates: I can't

7 answer your questions. So what are we supposed to do in that situation?

8 The suggestion that Mr. -- that Mr. Rogers makes, that we -- that we

9 weakly acceded to his assertions is not only insulting, it's also absurd.

10 We all have sat in this room, we all watched him, we all watched his

11 demeanour, we all saw how he answered, what he answered, when he

12 answered. We haven't had the opportunity to cross-examine this man.

13 You're left with not even a one-sided story. Submitted.

14 JUDGE MOLOTO: Yes, Mr. Harvey.

15 MR. HARVEY: Your Honours, I adopt everything said by

16 Mr. Emmerson, everything said by Mr. Guy-Smith, but I'd just like to add

17 this: In my submission it lies ill in the mouth of a Prosecutor to say:

18 You had your chance to cross-examine, when he himself took the tactical

19 decision not to ask Your Honours for permission that he could

20 cross-examine the witness. If his position is that this witness was

21 adverse to the Prosecution, he had a basis on which to ask Your Honours

22 to allow him to treat this as a hostile witness and to cross-examine him.

23 Instead of that, he took a tactical decision to slip in through the

24 backdoor the evidence that he hoped that Your Honours would agree to him

25 slipping in, which is evidence from a trial in 2005 in which --

Page 502

1 JUDGE HALL: Just, Mr. Harvey, if I may interrupt.

2 MR. HARVEY: Please.

3 JUDGE HALL: Is that a fair characterisation of the position

4 taken by Mr. Rogers in this matter because the -- whereas I understand

5 what you saying he took a tactical decision to do what he did, but isn't

6 there a clear distinction between the procedure that would have been

7 invoked had we gone -- had we had to go down the road of considering

8 whether this was a hostile witness and the application that Mr. Rogers in

9 fact made that the testimony in question was admissible under Rule 89(C)

10 without more?

11 MR. HARVEY: Your Honour, yes, there is a distinction to be made

12 between those two positions. The point that I am seeking to raise

13 is - and I'm sure one that Your Honours will all accept - that written

14 evidence from a previous case upon which a witness has not been

15 cross-examined in this case and cannot be - and the Defence has been

16 deprived of the opportunity of cross-examining him on that

17 evidence - that evidence is by definition of far less probative value, of

18 far less weight than evidence that has been cross-examined before

19 Your Honours, where you have seen an opportunity for the questions to be

20 asked and the answers to the given. That's why I say that this is

21 evidence of a different character, a different quality, and not the kind

22 of evidence which Your Honours would prefer, I'm sure, to have. I am

23 sure you would prefer to have from the witness --

24 JUDGE MOLOTO: If I might just ask you.

25 MR. HARVEY: Please, Your Honour.

Page 503

1 JUDGE MOLOTO: Is it not so that the decision admitting this

2 evidence did, in fact, deal with the question of weight to be attached

3 depending on the difficulties that you are raising?

4 MR. HARVEY: Your Honours, you have addressed or you have told

5 us, of course, that you will determine what weight to attach to it. The

6 problem that counsel always has in the Tribunal in this circumstance is

7 we don't know how much weight you will attach --

8 JUDGE MOLOTO: Do you know in other jurisdictions?

9 MR. HARVEY: Well, actually --

10 JUDGE MOLOTO: You say this is the trouble in the Tribunal. In

11 other jurisdictions do you ever know what weight a Judge attaches to any

12 evidence?

13 MR. HARVEY: The issue is not --

14 JUDGE MOLOTO: Because I would like to be able to give you that

15 determination if I -- if it is possible.

16 MR. HARVEY: Your Honours, all I am saying is that you will, of

17 necessity, attach less weight to evidence that has not been

18 cross-examined on, less weight to evidence that is only on paper, less

19 weight to evidence that was given six years ago than you would do to a

20 witness who is actually questioned before Your Honours, where you had had

21 an opportunity to observe his demeanour in answering specific questions.

22 I think that's a fundamental approach that any Tribunal would take. I'm

23 not seeking to take it further than that, nor am I seeking to impugn your

24 ruling this morning or your intention to evaluate these matters with the

25 greatest of care.

Page 504

1 All I'm saying is that the Prosecutor - and again I understand

2 his reasons, I hope - took a tactical decision not to seek to

3 cross-examine this witness. And then he accuses the Defence of taking a

4 tactical decision not to seek to cross-examine this witness --

5 JUDGE MOLOTO: I must interrupt you again.

6 MR. HARVEY: Please.

7 JUDGE MOLOTO: He's not accusing you. He's just mentioning it as

8 a matter of fact, if I understood how he put it. He's not putting blame

9 on that decision, that it was a wrong or a right decision. He says: In

10 your wisdom you made that decision --

11 MR. HARVEY: Your Honours --

12 JUDGE MOLOTO: -- without criticising you, but he's say what he

13 sees as the consequences of that decision from his point of view.

14 MR. HARVEY: And I'm saying what I see as the consequences of his

15 decision. I don't want to get into a question of whether -- I don't

16 believe I'm the accused here and I don't certainly feel as if I'm under

17 accusation --

18 JUDGE MOLOTO: Of course not. And he's not accusing you of

19 anything.

20 MR. HARVEY: My skin is not that thin. What I am concerned about

21 is the appearance of justice in a case of this nature and the appearance

22 of justice is, in my submission, damaged when the Defence genuinely do

23 not have the opportunity to cross-examine on evidence as significant as

24 the Prosecution maintains this to be. That is all I think that it is

25 reasonable for me to say. I don't think it would have been appropriate

Page 505

1 for me to take it any further with the witness, having spent three days

2 in this court, seeing whether that witness was prepared to say anything

3 at all. And having heard that witness say in terms - and I'm looking at

4 page 397, line 19 - in relation to -- in answer to a question about

5 Pal Krasniqi and Skender Kuci, I'm -- that's back at line 11 of that

6 page, Mr. Rogers asked him:

7 "Mr. Kabashi, I return to these two men, Pal Krasniqi and

8 Skender Kuci, what can you tell the Trial Chamber, please, about what you

9 saw or heard in relation to those men in Jabllanice in 1998?"

10 A few lines further down, and I don't think I'm missing anything

11 of substance, Mr. Rogers will tell you if I am, he says:

12 "The perpetrator is today free, was never, never detained, never

13 charged, and I am speaking specifically of the same subject matter as I

14 have seen many things in my life. How can I trust that Prosecution that

15 it has done the best thing?"

16 Now, the only reason that I mention that is that many grounds

17 have been speculated upon as to why this witness has chosen not to

18 answer, has said that he cannot answer, and it's clear that one of his

19 grounds is he feels that he has been abused, not by Mr. Rogers

20 personally, not by even those involved in the case today, but by those

21 who investigated it all those years ago. He feels that he has been made

22 a victim by the Prosecution in this case. The only simple issue was

23 whether as Defence counsel it was possible for us to persuade him to say

24 anything because we are not the Prosecution. He sees us standing here as

25 the Defence. Is he prepared to answer our questions either? The answer

Page 506

1 is no. There's no point in taking it further.

2 MR. EMMERSON: Can I just raise one technical matter before

3 Your Honours rise to consider this. During the course of your ruling you

4 referred upon and relied on paragraph 16 of the Milosevic decision and

5 turning to the operative paragraph, one passage that I don't think found

6 voice in Your Honours' ruling is this and if I can just read it into the

7 record, this is again from paragraph 16:

8 "Where the witness is present before the Court and orally attests

9 to the accuracy of a statement, the evidence entered into the record

10 cannot be considered to be exclusively written within the meaning of

11 Rule 92 bis. The testimony of the witness constitutes a mixture of oral

12 and written evidence."

13 Now, that being the case, the record that Your Honours will have

14 to consider when evaluating the testimony, if it remains in evidence, is

15 not the transcript in Limaj but the evidence of this witness here and the

16 transcript in Limaj or such portions of the transcript in Limaj as you

17 consider to be genuinely probative and to outweigh the unfairness. It is

18 mixed testimony, part written/part oral. And since, as the

19 Milosevic Appeals Chamber pointed out, it requires the witness orally to

20 attest to the accuracy of the material, Your Honours would need to find

21 on the criminal standard of proof that this witness had attested to the

22 accuracy of his answers in Limaj. The standard of proof must be beyond

23 reasonable doubt, the burden must be on the Prosecution, as in all such

24 matters. It follows that Your Honours are going to need to address the

25 answers that this witness gave about the reliability of his Limaj

Page 507

1 testimony against the criminal standard of proof. That's the first

2 thing.

3 And as far as I've understood Mr. Harvey's submission and if I've

4 understood it correctly, I adopt it, Mr. Rogers gave notice to all of us

5 on Monday night that if he didn't get answers from satisfactorily

6 continuing to lead the witness in chief he would be thinking of applying

7 to have him cross-examined by the Prosecution.

8 JUDGE MOLOTO: He wanted to consider.

9 MR. EMMERSON: Yes, well in fact he indicated in the letter on

10 Friday that the --

11 JUDGE MOLOTO: The letter is not before the court --

12 MR. EMMERSON: Well, it was sent to the Registry.

13 JUDGE MOLOTO: We don't want to see it.

14 MR. EMMERSON: Well, it was sent to the Registry. Well, I can

15 indicate to Your Honours that he indicated to the Defence that he would

16 in all probability apply to cross-examine.

17 JUDGE MOLOTO: In all probability.

18 MR. EMMERSON: Yes, of course. I'm not saying he's bound to.

19 Why didn't he? The answer is he wouldn't have gotten the answers. He

20 knows it just as we knew it.

21 MR. GUY-SMITH: I'm sorry, I don't know based upon a decision

22 that we recently received precisely how the Chamber wishes to treat

23 issues of joining, so I rise to join in Mr. Harvey's remarks, nothing

24 more.

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

Page 508

1 In the interests of expeditiousness, I think it's going to be

2 important that we follow the rules. An applicant will stand up and

3 motivate an application, there will be a response, there will be a reply

4 and we'll stop, unless there is an application to further argue because

5 otherwise we just keep jumping up all the time and we're getting to an

6 end.

7 MR. GUY-SMITH: Thank you.

8 JUDGE MOLOTO: Mr. Rogers.

9 MR. ROGERS: It appears I am already guilty of jumping up

10 immediately.

11 JUDGE MOLOTO: Yes.

12 MR. ROGERS: May I -- I don't want to prolong things

13 unnecessarily, but there are a couple of things Mr. Emmerson raised in

14 his submissions relating to the value of the Limaj testimony and he said

15 I hadn't provided a list of the parts of that transcript that went to

16 issues in this case. Your Honour, I can very readily, quickly identify

17 most of the relevant parts, and it is not just about Pal Krasniqi and

18 Skender Kuci. It goes to many other issues, including the leadership at

19 the base -- at Jabllanice, to the continuity of events between April 1998

20 through into June, July, and later, and also other events that are

21 occurring around the area. So it is not just -- this man did not just

22 talk about Pal Krasniqi and Skender Kuci. He dealt with other victims

23 and individuals, some who are named in the indictment and some who are

24 not, and the relationships between them, what he observed relating to two

25 of the accused, a little bit about Mr. Haradinaj, but it's not just about

Page 509

1 those two. I'm sure having looked at the transcript Your Honours will

2 already readily have noticed that. That was one short point.

3 I think Your Honours have already dealt with it, the argument

4 really is about weight and my learned friends have tried with I think

5 nimbleness of foot was what I suggested I had, tried to avoid -- not

6 avoid, but work that very delicate balance between arguments of probative

7 ands value and weight and actually this is all about weight and I think

8 my learned friends recognise that to some extent but they suggest there

9 is no weight, there is no probative value. Your Honours, we don't accept

10 that. There is clear probative value in the testimony. I don't think I

11 need to say anymore; that's all I wish to say.

12 JUDGE MOLOTO: Just before we go on, I must apologise here.

13 Because of the break we had a little earlier, I have become remiss of how

14 long we have been sitting for now and I'm just concerned about how long

15 we have been sitting now. I am concerned about the tapes and the

16 interpreters and everybody. I see the stenographer is throwing up her

17 arms in the air in exasperation. It should be an appropriate point of

18 time from her point of view to take a break. I see she's nodding her

19 agreement. It's not the normal time for a break ...

20 [Trial Chamber and Registrar confer]

21 JUDGE MOLOTO: Can I just check one point with you, Mr. Emmerson.

22 Did you say the Registry is in receipt of your letter?

23 MR. EMMERSON: No, I'm sorry --

24 JUDGE MOLOTO: You said you would send it --

25 MR. EMMERSON: What I said was I had understood -- if I'm wrong

Page 510

1 then I will correct myself, but I had understood that Mr. Rogers' letter,

2 sent on Monday at 6.49 p.m. in which he says: You should expect an

3 application to treat the witness as adverse --

4 JUDGE MOLOTO: Sure, sure, I understand --

5 MR. EMMERSON: Had been copied to the Registry and I'm looking at

6 the list of names and it may be that it was not.

7 MR. ROGERS: No, I can answer that since I wrote it and sent it.

8 It's not copied to the Registry. It was a courtesy between myself and my

9 learned friends to try to assist them in their preparations. I shall

10 make sure it is more fulsome and perhaps more formal in the future.

11 JUDGE MOLOTO: Thank you, Mr. Rogers. Is -- I'm not sure now how

12 to work out my time. Can we take a break and come back at quarter past

13 12.00 and when we come back we will go up to the end of the day. Court

14 adjourned.

15 --- Recess taken at 11.43 a.m.

16 --- On resuming at 12.18 p.m.

17 JUDGE MOLOTO: We did get the message that you do want to stand,

18 but before you do can I just say to the parties that we heard your

19 arguments on the application. The Chamber will consider it and come back

20 to you.

21 Yes, Mr. Guy-Smith.

22 MR. GUY-SMITH: Yes, Your Honour. Thank you very much.

23 I do believe the next witness that is going to be called by the

24 Prosecution is --

25 JUDGE MOLOTO: [Microphone not activated]

Page 511

1 MR. GUY-SMITH: Surely. Thank you very much.

2 I do believe the next witness that is going to be called by the

3 Prosecution is Mr. Stijovic. The Balaj Defence team filed an ex parte

4 urgent motion, for which we have not yet received a decision, which

5 directly impacts upon our potential cross-examination of this witness.

6 As a result of that, we may -- I don't say we may. We are not in a

7 position to necessarily cross-examine him in the event that such a need

8 arises. But then again, I don't know how the Chamber's going to rule on

9 our motion.

10 [Trial Chamber confers]

11 JUDGE MOLOTO: Mr. Guy-Smith, we take the point that the decision

12 has not been rendered yet. Would it prejudice you terribly if the

13 witness goes on and gives his evidence --

14 MR. GUY-SMITH: It would not, Your Honour, but I wanted to alert

15 you to it before he came in to take the stand -- and for that I stood up

16 and then made the submission at that point in time, it would come to you

17 unexpectedly and I didn't want that to occur.

18 JUDGE MOLOTO: We are very grateful to you for that

19 consideration. We will try to expedite the decision.

20 MR. GUY-SMITH: Thank you very much.

21 JUDGE MOLOTO: Mr. Rogers.

22 MR. ROGERS: Two matters before Ms. Kravetz takes over to deal

23 with Mr. Stijovic. The first one relates to Witness 75. Your Honours,

24 he's warned for later this week -- scheduled for later this week, I

25 slipped into my jurisdiction for a moment. He's scheduled for later this

Page 529

1 idiosyncrasy of mine. I'm used to -- when counsel stands up on the one

2 side, other counsel sits. When you are both standing it is as if you are

3 about to get into the ring literally and I can give you boxing gloves and

4 we can hit the bell and you can box. I would request when one is

5 talking, the other sits. So when you are standing I feel I have to come

6 quickly to you to say what do you want to say.

7 MS. KRAVETZ: I take the point, Your Honour. I heard the door

8 and thought the witness was coming in.

9 JUDGE MOLOTO: Thank you so much. Okay.

10 We are in open session. May the witness be brought in, please.

11 [The witness entered court]

12 JUDGE MOLOTO: May the witness please make the declaration.

13 THE WITNESS: [Interpretation] I solemnly declare that I will

14 speak the truth, the whole truth, and nothing but the truth.

15 JUDGE MOLOTO: Thank you very much. Good afternoon, sir. May

16 you please be seated.

17 THE WITNESS: [Interpretation] Good afternoon to you.

18 JUDGE MOLOTO: Madam Kravetz.

19 MS. KRAVETZ: Thank you, Your Honour.

20 WITNESS: ZORAN STIJOVIC

21 [Witness answered through interpreter]

22 Examination by Ms. Kravetz:

23 Q. Good afternoon, sir. Could you please state your full name for

24 the record.

25 A. My name is Zoran Stijovic.

Page 530

1 Q. When and where were you born, Mr. Stijovic?

2 A. I was born on the 13th of November, 1962, in Podgorica, in

3 Montenegro.

4 Q. Sir, have you previously provided a statement to the Office of

5 the Prosecution of this Tribunal on 26 September 2007?

6 A. Yes, I did.

7 Q. Have you recently had the opportunity to review that statement?

8 A. Yes, I did.

9 Q. And having reviewed your statement, does it accurately reflect

10 what you said at the time when you were interviewed?

11 A. Yes, it does. It reflects what I said at the time.

12 Q. And if you were examined today on the same issues, would you

13 provide the same answers?

14 A. I certainly would.

15 Q. Thank you, sir.

16 MS. KRAVETZ: Your Honour, the statement is 65 ter 00931 and I

17 seek to tender it into evidence at this stage.

18 JUDGE MOLOTO: The statement is admitted into evidence. May it

19 please be given an exhibit number.

20 THE REGISTRAR: Your Honours, that would be Exhibit P121.

21 JUDGE MOLOTO: Thank you so much.

22 MS. KRAVETZ:

23 Q. Sir --

24 JUDGE MOLOTO: Yes.

25 MS. KRAVETZ: Thank you, sir.

Page 531

1 Q. Sir, have you previously testified before this Tribunal in the

2 case of Haradinaj et al. in October of 2007?

3 A. Yes, I did testify.

4 Q. Have you over the past days had the opportunity to review the

5 record of your prior testimony?

6 A. Yes, I have. Over the last weekend I reviewed or actually I

7 listened to the audio recording of the transcript.

8 Q. And having reviewed the audio of the transcript, are you

9 satisfied that it accurately reflects what you said at the time when you

10 provided testimony in that case?

11 A. Yes, it reflects what I said at the time.

12 Q. And if examined on the same issues today, would you provide the

13 same answers, sir?

14 A. Yes, I certainly would basically. Perhaps there would be some

15 terminological additions, but the answers to the same questions would be

16 essentially the same.

17 Q. Thank you for that.

18 MS. KRAVETZ: Your Honour, I seek to tender the transcript into

19 evidence. There are two 65 ters. The first one is 04049, that's the

20 public redacted version of the transcript. And the second one is 04050,

21 and that version should be tendered under seal.

22 MR. GUY-SMITH: If I might, Your Honour, before you make a ruling

23 on that matter, may I voir dire the witness with one discreet issue

24 concerning his audio review of the transcript of the testimony.

25 JUDGE MOLOTO: You said may you do what?

Page 532

1 MR. GUY-SMITH: Voir dire.

2 JUDGE MOLOTO: Okay. You may.

3 MR. GUY-SMITH: Thank you very much.

4 Q. Good morning, sir --

5 JUDGE MOLOTO: Sorry.

6 MR. GUY-SMITH:

7 Q. Good morning, sir, you indicated that you --

8 MS. KRAVETZ: Your Honour --

9 MR. GUY-SMITH:

10 Q. -- listened to the audio of your testimony over the weekend.

11 Could you tell us how many hours you spent listening to your audio of

12 your testimony?

13 JUDGE MOLOTO: Sorry, wouldn't that be relevant at

14 cross-examination time, Mr. Guy-Smith?

15 MR. GUY-SMITH: Well, may be relevant now with regard to the

16 admissibility of the information because it may go directly to his

17 credibility; it may not.

18 MS. KRAVETZ: Your Honour, if I may, I think that's a matter my

19 learned colleague can address with the witness when it his turn comes to

20 question him.

21 JUDGE MOLOTO: That's what I'm trying to explore with counsel in

22 fact.

23 MR. GUY-SMITH: I'll take it up later, if you will --

24 JUDGE MOLOTO: Yeah --

25 MR. GUY-SMITH: I think it's more appropriate to deal with it

Page 533

1 now, but I'm in your hands as is said in these halls.

2 JUDGE MOLOTO: Okay. Let's do it at the time of

3 cross-examination.

4 MR. GUY-SMITH: Very well.

5 JUDGE MOLOTO: Thank you.

6 You may proceed, Madam Kravetz.

7 MS. KRAVETZ: I ask that those two versions of the transcript be

8 assigned exhibit numbers.

9 JUDGE MOLOTO: Madam Registrar, those two transcript --

10 65 ter numbers are admitted into evidence. May you please give them an

11 exhibit number, please.

12 THE REGISTRAR: Your Honours, 65 ter 04049 will be Exhibit P122

13 and 65 ter 04050 will be Exhibit P123 under seal.

14 JUDGE MOLOTO: Thank you so much.

15 MS. KRAVETZ: Your Honours, there are a number of associated

16 exhibits, exhibits that are associated to both the transcript and the

17 written statement of this witness which have been listed in our -- in the

18 annex to our 92 ter application. We have provided the court officer and

19 also the Defence with the list of the exhibits that we consider to be

20 associated to both the written statement and the transcript, and we seek

21 that those be admitted into evidence. What I propose is that rather,

22 since it's a very long list, as Your Honours are probably aware from our

23 application, rather than reading each one of the 65 ters into the record,

24 I would propose that Your Honours order the court officer at a later

25 stage to assign exhibit numbers to those exhibits. But I'm in

Page 534

1 Your Honour's hands. If you prefer me to read -- to go through each 65

2 ter number and tender it, I can also proceed in that way.

3 JUDGE MOLOTO: We can make that order only if there is no

4 objection from the Defence. If there is, I'm afraid, we may have to deal

5 with each one of them seriatim.

6 MR. DIXON: Your Honour, as far as the Haradinaj Defence is

7 concerned, as we indicated in our response to the 92 ter motion there is

8 no objection to those documents which were admitted in the original trial

9 which this witness gave evidence about in examination-in-chief and in

10 cross-examination. It's only those that were not admitted which are not

11 on that list. So there's no objection to these all be giving numbers.

12 The only condition is that the Prosecution has left off some of the

13 exhibits that were shown to the witness. Providing those can be added so

14 that when Your Honours read the transcript all the documents that were

15 shown to the witness that were admitted are on the record.

16 JUDGE MOLOTO: Shouldn't you rather tender them in your

17 cross-examination?

18 MR. DIXON: I think that can be done when we get on our feet.

19 JUDGE MOLOTO: Did I understand you to say clearly it's on the

20 list only those which were tendered in the previous trial.

21 MR. DIXON: And admitted.

22 JUDGE MOLOTO: And admitted. And cross-examined?

23 MR. DIXON: Yes.

24 JUDGE MOLOTO: The others are not there?

25 MR. DIXON: The others are not on that list.

Page 535

1 JUDGE MOLOTO: So you have no objection to the entire list?

2 MR. DIXON: Precisely.

3 JUDGE MOLOTO: Thank you very much.

4 Mr. Guy-Smith.

5 MR. GUY-SMITH: That is a correct statement of the Balaj Defence.

6 JUDGE MOLOTO: Mr. Harvey.

7 MR. HARVEY: And of the Brahimaj Defence.

8 JUDGE MOLOTO: Thank you very much. Then, all the annexes to the

9 statement and transcripts may be admitted into evidence and may

10 Madam Registrar at a time outside of court at her convenience give them

11 exhibit numbers.

12 Madam Registrar.

13 THE REGISTRAR: Your Honours, an internal memorandum will be

14 filed as soon as numbers have been assigned.

15 JUDGE MOLOTO: Thank you so much, Madam Registrar.

16 Madam Kravetz.

17 MS. KRAVETZ: Your Honours, just one more issue in relation to

18 the associated exhibits. I just wanted to bring to Your Honour's

19 attention the fact that about 13 of these documents were admitted in the

20 previous trial with draft English translations. We have kept the draft

21 translations in the e-court system simply not to modify the record of

22 what was admitted previously, but should Your Honours want to also

23 benefit from having a revised translation into the e-court system that --

24 we can provide that and upload it at this stage -- and I'm just saying

25 this because when the time comes for you to review the exhibits you

Page 536

1 may -- you will realise many of them say draft or unrevised and that's

2 just how they were admitted in the previous case.

3 JUDGE MOLOTO: Let me be clear I understand you. To the extent

4 that translations are already in e-court, I do not think that the

5 Trial Chamber would want a duplication. To the extent that you say

6 you -- they are drafts or unrevised, to that extent I find it a little

7 surprising that they are called drafts when they are already admitted.

8 MS. KRAVETZ: They were admitted in the previous trial in that

9 manner.

10 JUDGE MOLOTO: Okay.

11 MS. KRAVETZ: So I can't explain why that happened.

12 JUDGE MOLOTO: Okay.

13 MS. KRAVETZ: I presume there was just no time to obtain revised

14 translations at the time, but this is just my guess.

15 JUDGE MOLOTO: Okay. May --

16 MR. GUY-SMITH: Well, I'm a bit surprised by the position the

17 Prosecution takes. Exhibits were admitted, they're part of the record,

18 they've relied on the record, they've made that part of their 92 ter

19 statement, they are the associated exhibits set from the basis of this

20 gentleman's testimony. The idea at this point or the notion that

21 substituted translations of any sort would go in at this point in time we

22 would object to. It is inappropriate for a plethora of reasons.

23 JUDGE MOLOTO: As I've just said to Madam Kravetz, we don't --

24 the Chamber doesn't find it necessary to do that.

25 MR. GUY-SMITH: Thank you.

Page 537

1 JUDGE MOLOTO: Okay. Anyway, let the record show that they are

2 no longer drafts, but as -- as admitted into evidence now they are part

3 of the evidence.

4 MS. KRAVETZ: Thank you, Your Honour. That's fine.

5 With Your Honour's leave I will proceed now to read a summary of

6 this witness's evidence.

7 JUDGE MOLOTO: You may, Madam.

8 MS. KRAVETZ: The witness worked as head of the analytical

9 section of the Pristina centre of the Serbian State Security Service,

10 RDB, between 1995 and 1999. He describes the area of responsibility of

11 the Djakovica SUP. He also describes the sources through which the

12 police collected information.

13 The witness describes the organisation of the RDB in Kosovo and

14 how the RDB and the analytical section received intelligence and

15 information through three regional RDB centres: Pristina, Prizren, and

16 Gnjilane centres. The witness describes the flow of information from an

17 RDB operative in the field all the way up to Belgrade. He also describes

18 the organisation and the role of the analytical section in Pristina.

19 The witness describes the sources from which the analytical

20 section received information.

21 From the mid-1990s an operation called Krug, circle, was

22 conducted by the RDB in Pristina to monitor the activities of the LPK and

23 the KLA. The witness describes this operation.

24 He also describes the development of the organisation of the KLA.

25 He describes the role of Ramush Haradinaj in organising the KLA in the

Page 538

1 Dukagjin zone and the role of Lahi Brahimaj in Jablanica. The witness

2 states that he received intelligence that Idriz Balaj, a.k.a., Toger was

3 the commander of a KLA rapid-reaction unit called the Black Eagles which

4 had its headquarters at a school in Rznic and that he was widely regarded

5 as being under the direct command of Ramush Haradinaj.

6 Finally, the witness speaks about KLA communiqués and indicates

7 that they are consistent with information received by the SUP from other

8 sources.

9 That is the end of the summary.

10 JUDGE MOLOTO: Thank you very much, Madam Kravetz.

11 MS. KRAVETZ:

12 Q. Sir, Mr. Stijovic, I would like to start by showing you a

13 document.

14 MS. KRAVETZ: If we could please have 65 ter 03067 up on the

15 screen. And if only the Serbian version could be displayed for the

16 witness and we can have the English for the rest of the Court.

17 Q. You have the document before you, sir?

18 A. Yes, I do.

19 Q. Sir, could you -- do you recognise this document; and if yes,

20 could you please comment on it?

21 A. I do recognise the document. This is an official note from a

22 working meeting held on the 26th of February, 1997, at the premises of

23 the state security department centre in Prizren. This working meeting

24 was attended by the head of the Kosovo and Metohija state security head,

25 Mr. Gajic, co-ordinator of the 3rd administration of the KiM,

Page 539

1 Ljubomir Joksic, the then head of the CRDB Prizren, Milivoj Savic --

2 JUDGE MOLOTO: Can I interrupt you, can you speak a little bit

3 slower. I see that the interpreter is struggling to keep pace with you.

4 THE WITNESS: [Interpretation] Very well. I apologise.

5 The chief of the state security centre in Prizren,

6 Mr. Milivoj Savic; his assistant, Jovanovic; head of the ORDB Pec,

7 Mr. Branko Djukic; and head of the ORDB Djakovica, Sreten Camovic. The

8 introduction at the meeting was given by the Djakovica state security

9 department chief, Mr. Camovic, who informed those present about the

10 information, about the existence of an illegal group in the village of

11 Jablanica, in the municipality of Djakovica, headed by Lahi Brahimaj and

12 about the measures which the Djakovica operative sector undertook in

13 relation to that group, namely, previous processing of Lahi Brahimaj was

14 recorded, previous processing is a form of work of the State Security

15 Service, implying the review of all members of that group through

16 Lahi Brahimaj and further planning of work and operation.

17 In the conclusions of the meeting a series of specific activities

18 was agreed upon which were to be initiated in the forthcoming period so

19 that this indicated and identified hostile activity at the time by

20 Mr. Lahi Brahimaj could be dealt with. And I can briefly state all the

21 points that were agreed upon and I can explain them.

22 MS. KRAVETZ:

23 Q. Before you do that, sir, is this a document that you would have

24 received at the time? We see that it's dated 27th February 1997. You

25 need to speak your answer just so that it can be recorded in the

Page 540

1 transcript.

2 A. We did receive this document in Pristina a day or two after the

3 27th, so we received it either the 28th of February or on the 1st of

4 March, depending on how many days there were in February of that year.

5 So this is a note from this working meeting.

6 Q. Sir, we see that the document refers to the initiation of an

7 investigation of the leader of the group, Lahi Brahimaj, and it refers to

8 measures and activities that are going to be taken. Based on the

9 information you have -- had at the time, do you know why it was decided

10 by the RDB to conduct an investigation into Lahi Brahimaj and his

11 activities?

12 MR. HARVEY: Your Honours.

13 JUDGE MOLOTO: Yes, Mr. Harvey.

14 MR. HARVEY: That last question does rather sound as if it's

15 either calling for speculation or calling for the witness to express an

16 opinion; or alternatively leading, and it's objectionable on all three

17 grounds in my submission.

18 JUDGE MOLOTO: Why do you think it's speculation? What I see

19 here is: Based on the information you have had at the time, do you know

20 why it was decided by the RDB to conduct an investigation into

21 Lahi Brahimaj and his activities? No, or not speculation. The question

22 is: Do you know?

23 MR. HARVEY: Well, as long as it's confined to answering that

24 precise question, then I don't object. But I'm just putting down a

25 marker, shall we say.

Page 541

1 JUDGE MOLOTO: May I suggest we only -- we don't put markers,

2 Mr. Harvey. We object when an objectionable statement is made.

3 Yes, Madam Kravetz, you may proceed.

4 MS. KRAVETZ: Thank you, Your Honour.

5 JUDGE MOLOTO: I think the question is perfectly okay.

6 MS. KRAVETZ:

7 Q. Could you please go ahead and answer my question, sir.

8 A. I do know and the State Security Service at that time knew that

9 in 1995 and 1996 there was a series of terrorist actions carried out,

10 attacks at police and citizens at houses in that area, in the Klina,

11 Decani, and Djakovica triangle of municipalities. And the information

12 acquired by this operations section of the RDB in Djakovica indicated

13 that this was a group headed by Lahi Brahimaj. So the meeting was on

14 that topic and specific activities were agreed at at the meeting, the

15 most important of which would be to -- initial processing which would be

16 part of the Krug, or circle, action headed by the RDB in Kosovo and

17 Metohija against Albanian terrorism to give the priority in their work to

18 the persons from the said group headed by Brahimaj and through him and by

19 processing him to deal further with all of those activities. In that

20 sense --

21 JUDGE MOLOTO: Mr. Harvey, you are seen getting up while the

22 witness is talking.

23 MR. HARVEY: Your Honour, I don't seek to interrupt the witness,

24 but he is giving a very long answer which starts clearly demonstrating

25 the dangerous area in which we are embarked because he says at 87, line

Page 542

1 6:

2 "And the information acquired by this operations section of the

3 RDB ... indicated ..."

4 Your Honour, at this point, it is quite clear in my submission

5 that we are embarked on levels of primary, secondary, who knows, tertiary

6 hearsay. And it's at this stage, Your Honours, I would respectfully

7 submit what we need is an indication from this witness of what sources of

8 information he was relying on that he is speaking of here.

9 JUDGE MOLOTO: Shouldn't we give Madam Kravetz to do that and see

10 whether she does get to the sources?

11 MR. HARVEY: Well, Your Honours, when I see an answer going on

12 for some 20 lines, I begin to worry that we're just straying too far away

13 from the question. But I will listen attentively and try not to

14 interrupt more than necessary. I will not lay down further markers. I

15 think it's very clear where we are going.

16 JUDGE MOLOTO: Thank you, Mr. Harvey. Your consideration is

17 appreciated.

18 You may proceed, Madam Kravetz. Do try to control your witness

19 also. You had asked a very simple question: Do you know? The answer

20 should have been: Yes, I do or no, I don't.

21 MS. KRAVETZ: Yes, Your Honour, I'm guided.

22 Q. Sir, just going back to your answer you referred to the

23 information acquired by this operation sector of the RDB in Djakovica

24 indicated that this group was headed by Lahi Brahimaj. Could you just

25 clarify for us and very -- try to be as brief as possible in your answer,

Page 543

1 to which information you're referring to. What was the source of this

2 information?

3 A. The source of our information in that period were conversations

4 with sources with whom the State Security Service was in touch with.

5 These are live sources, informants, and this is information that we

6 acquired relating to attacks from the police. So this is information on

7 the basis of which the Djakovica RDB sector located, identified

8 Lahi Brahimaj as the leader of a group, as the most extremist person in

9 that area; and that is precisely why he was placed as the focus of this

10 initial processing, through whom all the other actions in that area would

11 be viewed. All the attacks and everything that happened in that area

12 during 1995 and 1996 - and there were numerous attacks - were reported to

13 us by urgent dispatches, informing us about the attacks, the consequences

14 of which were wounding; attacks on houses, killings. And this was the

15 basis on which the decision to hold the meeting in this area was based.

16 So these activities resulted in a meeting that sought to reach specific

17 measures in order to continue action in order to prevent any further such

18 acts from occurring.

19 MR. HARVEY: Your Honours, Ms. Kravetz tried nobly to try to ask

20 the witness to be as brief as possible. Your Honours have seen the

21 result. It appears to me that the next question has got to be about

22 those sources because at this stage we are still dealing with hearsay

23 upon hearsay as it appears from the transcript to date. I just draw

24 everyone's attention to the fact that we are a long way from anything

25 that this witness can actually say he knows. Thank you.

Page 544

1 JUDGE MOLOTO: Do you have any comments to make?

2 MS. KRAVETZ: I think, Your Honour, I'm going to go back to the

3 answer Mr. Harvey made -- Mr. Stijovic made, but I don't think this is

4 the moment to be making submissions on the reliability of the evidence

5 this witness is giving; that is a matter for Your Honours at a later

6 stage when the time comes to assess all the evidence and decide on the

7 weight. So this witness is just responding on the basis of the knowledge

8 he had at the time. That's how I would understand his answer.

9 JUDGE MOLOTO: Thank you, Madam Kravetz.

10 MR. GUY-SMITH: I would interpose a thought as well as an

11 objection, Your Honour, which is the witness is not answering the

12 questions as posed. The witness is going beyond answering the question

13 posed. And I would ask Your Honour direct Ms. Kravetz once again to

14 control her witness so that we are not subjected to multiple unsourced

15 hearsay which is something that we raised at the very beginning of these

16 proceedings as being a matter of concern.

17 JUDGE MOLOTO: As I understand this witness - and I'm sorry I

18 have to say this because I've been trying to restrain myself from saying

19 this - it looks like this man is in the security department of sorts. He

20 has told us that he was given information by informants. Obviously what

21 we can expect is to be told what he did about that information and tell

22 us what he himself found out after he had received that information.

23 This is how police, I understand, work. They work with informants, they

24 ask people questions, and then they go and investigate. I don't know

25 whether this is the direction that is going to be taken, but -- and I was

Page 545

1 trying to stay away from saying this, but I do think that for a witness

2 of -- of who holds the position that this gentleman held at the time,

3 this kind of source is accepted, provided he tell us what he did. And

4 what this Chamber is going to look at is what he himself did as a result

5 of that information and what he found out on his own.

6 MR. GUY-SMITH: That may well be the case, but once again as I

7 have said repeatedly, we should not be putting the cart before the horse.

8 Whether or not he did in fact rely on informants and did in fact receive

9 information from that is a different issue. Did you get information, yes

10 or no? I mean, we're -- basic examination. Who, what, when, where, how.

11 JUDGE MOLOTO: Madam Kravetz, who, what, when, where, how.

12 MS. KRAVETZ: Thank you, Your Honour. I do wish to point out

13 that some of the issues my learned colleagues are raising were already

14 addressed in the prior testimony of this witness and I'm trying to avoid

15 going into all the same detail again. He has in the past already spoken

16 about the sources of his information, and since we're proceeding under

17 92 ter it may seem a bit disjointed because he's not providing -- going

18 into all the detail again at this stage --

19 JUDGE MOLOTO: It's a question of control, Madam --

20 MS. KRAVETZ: Yes --

21 JUDGE MOLOTO: -- you know, this is the problem and I've found in

22 this Tribunal people get asked what's your question: What's your name?

23 And then we get the whole history about the family tree of that person

24 instead of just being told what my name is. And, you know, I think it

25 becomes important for counsel to be alive to that kind of problem and to

Page 546

1 try and control his or her witness. You know, listen to your question,

2 ask the question, listen to the answer, get the answer, and stop the

3 witness. Because you control that discussion, you know what -- where you

4 want to go; he doesn't know where you want to go. So you are -- you

5 should lead him. That's why it's a leading examination.

6 MS. KRAVETZ: Thank you, Your Honour.

7 Q. Sir, just going briefly back to the document, we see that what is

8 stated in this official note is that the group led by Lahi Brahimaj will

9 be observed and investigated and future measures and activities aimed at

10 this group have been agreed.

11 Very briefly, do you know which measures were taken by the RDB at

12 the time to observe and investigate the activities of this group?

13 A. Yes, I do.

14 Q. Could you tell us what those were?

15 A. Besides the regular measures, to infiltrate our informants among

16 the ranks of that group, we also used measures of secret wire-tapping of

17 telephone conversations of the family telephone of the Brahimaj family.

18 We also did covert surveillance of Mr. Brahimaj and we co-ordinated and

19 synchronised all the information that we received regarding the activity

20 of the persons in that territory or throughout the whole area of Kosovo

21 and Metohija in co-ordination with the service that was working in

22 Belgrade.

23 Q. You referred to a covert surveillance of Mr. Brahimaj. Could you

24 explain what you meant by that.

25 A. Covert surveillance and monitoring is a special measure applied

Page 547

1 by the State Security Service. It is conducted by staff of the RDB, and

2 they physically monitor the contacts of the person depending on the

3 requirements and the needs of the State Security Service.

4 Q. Did this surveillance of Mr. Brahimaj and also the other measures

5 you've referred to there, the wire-tapping, et cetera, did that continue

6 into 1998?

7 A. Yes, but in 1998 we had a problem to carry out the covert

8 surveillance because Brahimaj did not go to Djakovica and Pec so often.

9 He evaded doing that, so it was very limited, the opportunities to apply

10 that measure. So we mostly relied on informant information and

11 information that we gleaned from wire-tapping the Brahimaj family

12 telephone.

13 JUDGE MOLOTO: Let me ask you a question, Madam Kravetz. I

14 thought this is a 92 ter witness. How long are you still going to be

15 with the witness?

16 MS. KRAVETZ: I only have five documents for him, Your Honour, so

17 this is one and I have four and I'm moving away. I just have one more

18 question in relation to this document and I'm moving away from it. Thank

19 you.

20 Q. Sir, we see in this document - this is the first paragraph or

21 second paragraph actually - where it says -- it refers to Lahi Brahimaj

22 as being the leader of the group in Jablanica. Based on this

23 surveillance and operation and investigation you conducted also into

24 1998, are you able to tell us whether he remained the leader of the group

25 based in Jablanica also in 1998?

Page 548

1 A. Yes, he did.

2 Q. Thank you.

3 MS. KRAVETZ: Your Honour, I seek to tender this document into

4 evidence, 03 -- 03067 [sic].

5 JUDGE MOLOTO: The document is admitted into evidence.

6 May it please be given an exhibit number.

7 THE REGISTRAR: Your Honours, for clarification, when counsel

8 requested the document it was 65 ter 03069 and not 7.

9 JUDGE MOLOTO: I have 7, Madam Registrar.

10 THE REGISTRAR: In that case, 03067 is Exhibit P124. Thank you,

11 Your Honours.

12 JUDGE MOLOTO: Thank you.

13 MS. KRAVETZ: Thank you.

14 Could we just move to the next document, that is 03068, 65 ter

15 03068.

16 And again, if the B/C/S version could be displayed for the

17 witness.

18 Q. You have the document, sir, before you?

19 A. Yes, I do.

20 Q. Very briefly, sir, could you tell us if you're familiar with this

21 document and tell us, if you are, what it is.

22 A. I am familiar with the document. This is an official note of the

23 state security department Djakovica dated 21 September 1997. In this

24 note there is a short account for the high -- for the senior officers of

25 the service in Pristina, saying that a raid on Jablanica is planned. The

Page 549

1 note was drafted based on information that we received earlier by means

2 of an urgent telegram from Djakovica. And in this document the

3 leadership of the Djakovica department is assessing the current situation

4 in that area, and they are passing on information, stating that the

5 operation would be premature at that moment. That the plans of the

6 police had been uncovered and that the group members in Jablanica were

7 aware of the preparations for that action. The higher leadership is

8 asked to --

9 Q. Sir --

10 A. -- refrain from launching that action --

11 Q. If I may stop you there. We see in paragraph 4 of this document,

12 it refers to the fact that the Djakovica RDB is investigating the same

13 group, it says illegal enemy group in Jablanica. Is this -- in the

14 Lahi Brahimaj investigation, is this the same investigation that we saw

15 referred to in the previous document or is this a different investigation

16 that's being referred to here?

17 A. It is the same investigation. It's the result of a working

18 meeting that took place in February in Djakovica in the state security

19 centre department and it's mentioned in the document I have spoken about.

20 Q. Thank you, sir.

21 MS. KRAVETZ: Your Honour, I wish to tender this exhibit into

22 evidence. It's 03068.

23 JUDGE MOLOTO: The document is admitted.

24 May it please be given an exhibit number.

25 THE REGISTRAR: Your Honours, 03068 will be Exhibit P125.

Page 550

1 JUDGE MOLOTO: Thank you.

2 MS. KRAVETZ: Could we now please have 03014 up on the screen and

3 I would like page 4. And if we could have only the Albanian displayed

4 for the witness.

5 Q. Sir, we see here a document that is entitled: UCK issues

6 statement on the execution of collaborators" and it refers to in

7 paragraph 1 to two ethnic Albanians accused of collaborate with

8 authorities in Belgrade being executed by the Kosovo Liberation Army, the

9 ethnic Albanian group said in a statement on Wednesday. Do you see that,

10 sir, the first paragraph. I see you nodding, sir, so I'll move on.

11 If you move further down in the document it refers to two persons

12 Jakup Kastrati, the local LDK chief and his deputy Cen Desku, who were

13 arrested by the KLA military police because they were called on people to

14 surrender their arms incorporated with collaborationists, the KLA

15 statement said.

16 Sir, we see that this is dated 4th November, 1998. Did your

17 service have information at the time about this specific -- oh, I think

18 we have the wrong -- I'm sorry, I see why you're looking puzzled. We

19 have the wrong page on the screen. Yes, I see why you're --

20 A. This is a mistake.

21 Q. Yes. We'll deal with the page on the screen, sir, and we'll turn

22 later to the other page. I see where you were.

23 So page 4 which is on the screen is entitled: "UCK claims

24 responsibility for killing Albanian SPS member."

25 And we see the first sentence refers to an ethnic Albanian

Page 551

1 Maliq Sheholli was shot dead by an unknown gunmen in Podujevo last

2 Thursday evening, Serbian press reports said the next day. The Serbian

3 press singled out the fact that he was a member of the SPS, and the only

4 man of Albanian ethnicity on the SPS list."

5 Did you have any information at the time about this attack? We

6 see that this is dated 13 January 1997.

7 A. Yes, we did.

8 Q. Could you tell us what sort of information you had at the time?

9 A. Since November or December 1996, we had information that in the

10 area of Podujevo a group was active that was led by

11 Zahir Pajaziti [Realtime transcript read in error "Bajaziti"] also known

12 as Wolf, a person who initiated the actions of the first major KLA group

13 in that area. By surveillance of his activity or monitoring of his

14 activity we obtained information that the person killed Maliq Sheholli

15 himself. I knew Maliq Sheholli personally, I also knew his family. He

16 was an employee of a firm in Podujevo and he was -- he had some media

17 presence because he was a member of the Socialist Party of Serbia. What

18 is being shown to me here is a translation of a text that was published

19 in some Albanian language publication. It would have been Koha or some

20 other daily.

21 Q. And if we look at the middle of the page -- of this page it says

22 that:

23 "An alleged Albanian organisation calling itself the UCK, the

24 Liberation Army of Kosova, has claimed responsibility of killing of

25 Maliq Sheholli through a fax message dated 12 January ..." and it doesn't

Page 552

1 give a date but it's 1997.

2 Sir, is the information you had at the time about this incident

3 consistent with what is stated here in the document?

4 A. This statement by the KLA was made post festum. We did have

5 information about the killing of Maliq Sheholli and

6 Inspector Milos Nikolic, who was killed in his village which was done in

7 the immediate vicinity of Podujevo. And we knew that this was done by a

8 group headed by Zahir Pajaziti. Later, that is in late January of the

9 following year, after another action in which Pajaziti took part, tried

10 to arrest him, but after an exchange of fire near Vucitrn a member of our

11 special forces was wounded and Zahir Pajaziti was killed. Another man by

12 the name of Hoxha and his cousin, Hakim Zejnulla [phoen]. I can add that

13 we were tapping the phone that was in the house where Zahir Pajaziti

14 stayed illegally in a neighbourhood of Pristina and we had him under

15 covert surveillance. On that day when he got killed, we tried to arrest

16 him at the bus station in Pristina, but he noticed the people who were

17 following him and he was able to abscond.

18 Q. Just a clarification, you -- the transcript records the name as

19 "Zahir Bajaziti". Is that the correct name of the person you were

20 speaking about?

21 A. No, it is Zahir Pajaziti, P like Paris, so it's Pajaziti.

22 Q. Thank you.

23 MS. KRAVETZ: Could we turn to page 6 of this exhibit. And if,

24 again, only the Albanian could be displayed for the witness -- I'm sorry.

25 I would like page 5 on the screen.

Page 553

1 Q. So, sir, this is the page that I was referring to earlier. It

2 says the -- it's entitled: "UCK issues statement on 'execution' of

3 collaborators." And it's dated 4th of November, 1998. I'll give you a

4 moment to look at it. It refers to two ethnic Albanians accused of

5 collaborating with authorities in Belgrade being executed by the

6 Kosovo Liberation Army. And towards the bottom of this article it refers

7 to two persons, Jakup Kastrati, the local LDK chief and his deputy

8 Cen Desku being arrested by the KLA because they were called to surrender

9 arms to the Serbian authorities and co-operate with collaborationists the

10 KLA statement said.

11 Sir, how does this information in this press report about members

12 of the LDK being targeted by the KLA accord with the information your

13 service had at the time?

14 MR. HARVEY: Your Honours, may we just establish what "at the

15 time" means. Does this time mean several months after the end of the

16 indictment period or does it mean some other time?

17 MS. KRAVETZ: I was -- I was going to establish that with the

18 witness. I'm asking specifically of the time of the document with --

19 which is November 1998 and I was going to move to the time --

20 JUDGE MOLOTO: Yeah, if you can say "November 1998," that would

21 be very helpful, Madam Kravetz. Okay, it's November 1998. That's the

22 time.

23 THE WITNESS: [Interpretation] This is merely one in a series of

24 events that happened in the previous period, that is, in 1998. The

25 target of which were not only members of the LDK, the Democratic Alliance

Page 554

1 of Kosovo, but also members of other ethnic Albanian political parties

2 who advocated a more moderate approach to the solution to the problems

3 prevailing in Kosovo at the time. And we had abundant information about

4 that.

5 MS. KRAVETZ: I'm sorry, I'm having a problem with my headphones.

6 That's why I'm pausing after each answer of the witness.

7 JUDGE MOLOTO: Do you need the technician's assistance?

8 MS. KRAVETZ: No, there's some problem, but I think I'll survive

9 for the next five minutes left of the hearing.

10 Q. Sir, you referred to the previous period, you said "that is

11 1998." Are you speaking about the entire year? Are you speaking about a

12 specific period in 1998 where you had heard about these attacks? If you

13 could just specify.

14 A. I will try to be as precise as possible. The State Security

15 Service, since 1996 through 1997 and 1998 registered such activities as

16 this. So this was nothing new. If necessary, I can provide examples

17 that will be very telling.

18 Q. So if I understand your answer correctly, you're not only

19 referring to 1998 but the period prior to that as well? Is that what you

20 meant to say in your answer?

21 A. Yes, that is correct.

22 Q. And very briefly, sir, what is the source of your information,

23 that members of the LDK were being targeted by the KLA during this period

24 that you've referred to?

25 A. Specifically interviews with the members of those political

Page 555

1 parties that were active in Kosovo and Metohija and the information that

2 we received from our informants and the information obtained through

3 surveillance. And there is a large amount of information of this kind.

4 Q. Based on the information that you were able to obtain at the

5 time, do you know why it is that members of the LDK were being targeted

6 by the KLA?

7 A. Well, I would need a couple of minutes just to explain the

8 context that prevailed at the time.

9 JUDGE MOLOTO: I'm sorry, Mr. Stijovic. The question is: Do you

10 know? You don't need a couple of minutes to do so. Yes, you know; or

11 no, you don't know. Then she will ask you the next question if she wants

12 you to explain. Okay.

13 MS. KRAVETZ:

14 Q. Just to clarify my question is: Do you know why it is that these

15 attacks happened against members of the LDK?

16 JUDGE MOLOTO: I'm sorry, the answer is going to be: Yes, I do

17 know why; or no, I don't know why.

18 THE WITNESS: [Interpretation] Yes, I do know why.

19 MS. KRAVETZ:

20 Q. And could you tell the Court how it is that you know this and ...

21 A. I personally spoke to the president of an ethnic Albanian

22 political party who in the month of August was arrested together with

23 members of some other political parties in the area of Drenica after the

24 anti-terrorist operation carried out by the police and the army. That is

25 one example where we reconstructed in a very detailed fashion the

Page 556

1 activities that were being taken then.

2 Q. Going back to my question, I asked you if you knew why and you

3 said: Yes, I do know why. So why is it -- I'm sorry, I'm --

4 JUDGE MOLOTO: Mr. Harvey.

5 MR. HARVEY: Your Honour, just this, he said in the month of

6 August. He didn't say what year.

7 MS. KRAVETZ:

8 Q. Sir, could you clarify when you say "in the month of August"

9 which year you were referring to.

10 A. 1998.

11 Q. Now going back to my question - and it's almost the end of the

12 session so I'll ask you to be very brief on this - do you know why it is

13 that these attacks happened? You said "yes," so why is it?

14 A. The gist in one sentence is the difference in approach to

15 resolving the problem in Kosovo and Metohija. The Democratic Alliance of

16 Kosovo and other Albanian political parties like the Democratic Christian

17 and the Social Democratic parties were for negotiations, for dialogue.

18 The KLA were against that and they insisted on resolving the problem by

19 means of an armed conflict and through weapons.

20 MS. KRAVETZ: Your Honour, I see we've run out of time. I have a

21 couple more questions in relation to this document. I can resume

22 tomorrow morning and then I will just have one additional document to

23 show to the witness.

24 JUDGE MOLOTO: Thank you, Madam Kravetz.

25 MS. KRAVETZ: I think just for the clarity of the record maybe we

Page 557

1 should have the -- this document be admitted at this stage and I can take

2 it from where we left off today tomorrow.

3 MR. GUY-SMITH: I object.

4 JUDGE MOLOTO: Basis?

5 MR. GUY-SMITH: On the first basis the incidents that are being

6 discussed are outside the indictment period both before and after the

7 indictment period. The second basis being that as I understand the state

8 of the documents that we have before us at the present time, what we have

9 is an Albanian translation of a copy of a document in English from the

10 northern -- North European Service, although as -- when I look at the

11 document itself there seems so have been -- the source of the news report

12 itself seems to be from Pristina, Yugoslavia. So I think there's some

13 difficulties just in terms of the authenticity of the information that's

14 been presented to the Court with regard to the translations.

15 Also, and in addition, at this point in time we have only had

16 discussion with regards to pages 4 and 5 of this document. So I'm not

17 entirely clear as to what the Prosecution wishes to have go into evidence

18 because the document itself is more than that -- consists of more pages

19 than that.

20 MS. KRAVETZ: If I can address that, Your Honour. I'm only

21 seeking to tender into evidence the two pages that I've shown to the

22 witness, that is, pages 4 and 5 of this exhibit, which is 65 ter 03014.

23 In relation to the objections raised by my learned colleagues, I wish to

24 draw to your attention the fact that documents of the exact same type are

25 already part of the trial record in this case, they have already been

Page 558

1 admitted into evidence by this Trial Chamber, and this is on the basis of

2 a joint motion filed by the Defence and the Prosecution in the case. And

3 I'm referring specifically to P65, which is a witness statement of a

4 witness called Jakup Krasniqi. If Your Honours look at page 14 of this

5 witness statement, this is annex 2 of the witness statement, a document

6 of the exact same type that I'm currently discussing with the witness is

7 attached and forms part of that exhibit and this is dated -- this is a

8 KLA communiqué dated 3rd -- 8 August 1997. So it is prior to indictment

9 period.

10 Page 90 of the same exhibit is another annex, annex 19, and it's

11 a communiqué of 17th October 1998, and it's also outside of the

12 indictment period. These documents form part of this witness statement

13 which my learned colleagues from the Defence agreed to have admitted in

14 this case as part of the trial record. So this -- these type of

15 documents are already in evidence.

16 MR. GUY-SMITH: And that indeed is true and it was testimony from

17 the trial in which the specific witness authenticated the communiqués.

18 JUDGE MOLOTO: I'm at a loss and I would like guidance

19 specifically from you, Madam Kravetz. Maybe the Defence might also have.

20 At the beginning of your examination of this witness you tendered his

21 statement and you tendered annexes to his statement. Defence didn't

22 object to you tendering them en masse. Do I understand that this

23 document that is on the screen is not part of those statements, that's

24 why you seek separate tendering of this document?

25 MS. KRAVETZ: Your Honour's understanding is correct. These are

Page 559

1 additional documents. We had indicated in our 92 ter application that

2 one of the reasons we were seeking to call this witness as a 92 ter

3 witness was to elicit additional evidence on certain new exhibits and the

4 Defence had been notified of which exhibits we intend to use during this

5 examination. So that's why I'm proceeding and tendering document by

6 document.

7 JUDGE MOLOTO: Okay.

8 MS. KRAVETZ: These are not part of the associated exhibits for

9 this witness.

10 JUDGE MOLOTO: Okay. That clarifies me because I was already

11 wondering whether -- is it a viva voce witness or is it --

12 MR. GUY-SMITH: And only so that the record is complete with

13 regard to my objection, the documents that the Prosecution presently

14 seeks to tender are reports from daily newspapers concerning what they

15 believe to be or what they are reporting are communiqués from the KLA.

16 So it's actually even, once again, a step removed.

17 JUDGE MOLOTO: Sure. It's a step removed. But the problem I

18 have is that the Rules of this Tribunal allow hearsay evidence and where

19 do you make -- draw the cut-off?

20 MR. GUY-SMITH: Where do I draw the cut-off?

21 JUDGE MOLOTO: Cut-off line.

22 MR. GUY-SMITH: Well, I draw the cut-off line I think probably at

23 a point which is a bit more conservative than others do; however, I don't

24 believe that the use of wholesale hearsay which is something that I have

25 discussed with you before is appropriate. And I leave it in your fine

Page 560

1 hands, independent of what the Rules are here at the Tribunal as regards

2 hearsay. There is a certain not only qualitative issue that exists with

3 regard to hearsay --

4 JUDGE MOLOTO: Yeah --

5 MR. GUY-SMITH: -- in terms of admissibility not in terms of

6 weight. If it's garbage in, there's no reason to take it. There's no

7 reason to burden your minds with garbage. And if it's multiple,

8 unsourced hearsay or multiple hearsay that you're going to have to plough

9 through and ultimately make an admissibility determination about which

10 has been what the conversation has always been, I suggest to you don't

11 need to do that. In your wisdom and in your thoughts you can say from

12 the outset you can say we're not in interested in having this quality of

13 evidence presented to us because it doesn't assist us in the fact-finding

14 process.

15 JUDGE MOLOTO: Thank you.

16 MR. GUY-SMITH: It's unreliable.

17 JUDGE MOLOTO: In my wisdom, I will admit it into evidence.

18 May it please be given an exhibit number.

19 THE REGISTRAR: Your Honours, 03014 will be Exhibit P126 and,

20 Your Honours, if counsel can notify Registry when those pages are

21 uploaded in e-court.

22 MS. KRAVETZ: We will do that, Your Honour.

23 JUDGE MOLOTO: Okay. Thank you so much.

24 Is that then the end of your examination for the day?

25 MS. KRAVETZ: For the day, yes, Your Honour.

Page 561

1 MR. DIXON: Your Honour, can I just add although the document has

2 been admitted and there was no disagreement last time, my learned friend

3 from the Prosecution is right, there was substantial submissions made

4 about the weight to be attached and those will be highlighted in due

5 course.

6 JUDGE MOLOTO: Mr. Dixon.

7 MR. DIXON: I'm simply adding that.

8 JUDGE MOLOTO: Thank you so much.

9 We will stand adjourned to tomorrow, 9.00 in the morning in the

10 same courtroom. Court adjourned.

11 --- Whereupon the hearing adjourned at 1.55 p.m.,

12 to be reconvened on Thursday, the 25th day of

13 August, 2011, at 9.00 a.m.