110829ED

Page 773

1 still have Mr. Gentian Zyberi with us.

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

3 Mr. Brahimaj.

4 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey for

5 Mr. Brahimaj, together with Mr. Paul Troop and Mr. Luke Boenisch.

6 JUDGE MOLOTO: Thank you so much. Mr. Menon.

7 MR. MENON: The Prosecution calls Bislim Zyrapi.

8 JUDGE MOLOTO: Thank you. May the witness be brought in.

9 [The witness takes the stand]

10 JUDGE MOLOTO: Good afternoon, Mr. Zyrapi. Just to remind you

11 that you're still bound by the declaration that you made at the beginning

12 of your testimony to tell the truth and nothing but the truth.

13 Thank you so much.

14 Mr. Menon.

15 WITNESS: BISLIM ZYRAPI [Resumed]

16 [Witness answered through interpreter]

17 Re-examination by Mr. Menon: [Continued]

18 Q. Good afternoon, sir. There's a couple of points that I first

19 need to clarify from the answers that you gave me on Friday.

20 First of all, I had put the question to you as to when you first

21 met Mr. Ramush Haradinaj, and at lines -- at transcript page 768 lines 9

22 to 10, you said: "The first time I met with him was in April in Tirana,

23 when he came to the flat where I was staying with some colleagues, other

24 officers."

25 And I just want you to clarify, sir, which year that was in?

Page 774

1 A. April, 1998.

2 Q. Thank you very much, sir. And then again, I put -- I read to you

3 from your transcript in the prior case. And this is at transcript page

4 3212, line 5 of P159. And the reference -- the transcript read. This is

5 your answer in the prior case, sir:

6 "For the first time I saw him," being Lahi Brahimaj, "in July in

7 the General Staff."

8 Again, sir, which year was that?

9 A. In July 1998.

10 Q. Thank you very much, sir. Now, sir, moving on. Can you tell us,

11 sir, whether you visit the village of Voksh in the year 1998?

12 A. No.

13 Q. You did not visit that village.

14 A. No, I didn't visit it.

15 Q. Thank you very much, sir. Can you tell us, sir, how often you

16 recall meeting with Mr. Brahimaj in the period between July and September

17 1998? And I don't want you to speculate; I only want you to answer that

18 question if you precisely recall how often you actually recall meeting

19 with him.

20 A. I don't know exactly, but it was quite often between July and

21 September.

22 Q. Can you elaborate on that? Do you know how often? When it was

23 more frequent; and when it was less frequent?

24 A. More frequent in August.

25 Q. Okay. And was -- would that be towards the -- in the beginning

Page 775

1 of the month, the middle of the month, or the end of the month; do you

2 know, sir? Of August, 1998.

3 A. Well, in the beginning, in the middle, and in the end, I would

4 say.

5 Q. And do you recall where you met with him, sir?

6 A. At that time, we most frequently met in the location where the

7 staff was based at the time. And, of course, I also met him at the

8 meetings of the staff.

9 Q. And do you know where that was, sir? Where the staff was based

10 at the time?

11 A. As I said, it moved. In July, the staff was based near Rahovec

12 during the fighting there. So I met him there. For sometime, it was

13 based in the mountains of Berisha, then in the area of Drenice. In all

14 these different locations, we met.

15 Q. Very well, sir. Moving on, sir, I want to read to you a question

16 and answer that you gave on Friday to Mr. Emmerson.

17 And the question -- and the transcript reference is -- transcript

18 page T-738, lines 4 through 8. And the question was put to you sir:

19 "So whatever the position on paper, the practical reality on the

20 ground was that Mr. Haradinaj was the commander over in Gllogjan, but

21 others were in command in Jabllanice. Do you agree?"

22 And your answer, sir, was:

23 "I do not know prior to that, but in July when I went to visit

24 Jabllanice it was under the command of the Operational Zone."

25 And I'd like you to clarify, sir, which operational zone you are

Page 776

1 referring to?

2 JUDGE MOLOTO: Just before the witness answers. Can you --

3 Okay, it's been corrected. Okay, thank you.

4 THE WITNESS: [Interpretation] At the time, and I'm speaking about

5 July, I was referring to Dukagjini.

6 MR. MENON:

7 Q. And who was in command of the operational zone in Dukagjini, in

8 July, 1998, sir?

9 A. In July, when I visited, the commander was Ramush Haradinaj.

10 Q. Thank you very much, sir.

11 Now, sir, based upon what you observed during your visit to the

12 Dukagjin zone in July 1998, can you tell us whether KLA soldiers in the

13 Dukagjin zone respected Ramush Haradinaj's authority?

14 A. Yes. At the time, during my visit, together with him, yes.

15 Q. And can you tell us how you came to see that? How do you know

16 that that was the case?

17 A. During the visit, together with Ramush Haradinaj, the commander,

18 of these villages, I could tell that his authority was respected, at

19 least by the units in those villages that we went to.

20 Q. Thank you very much, sir.

21 MR. MENON: Your Honour, if I could just have a minute to consult

22 with my colleague.

23 JUDGE MOLOTO: You may, sir.

24 [Prosecution counsel confer]

25 MR. MENON: Your Honour, the Prosecution has no further questions

Page 777

1 for this witness.

2 JUDGE MOLOTO: Thank you so much.

3 [Trial Chamber confers]

4 JUDGE MOLOTO: Mr. Zyrapi, that brings us to the conclusion of

5 your testimony. Thank you so much for coming to the Tribunal to testify.

6 You are now excused. You may stand down and travel well back home.

7 THE WITNESS: [Interpretation] Thank you.

8 [The witness withdrew]

9 MR. DIXON: Your Honours, while the witness is changing over,

10 could I just mention on the associated exhibits, there are some

11 associated exhibits for this witness and the previous witness,

12 Mr. Stijovic, which the Prosecution had not put on the list given to the

13 registry. We have added those and there's no objection from the

14 Prosecution to those going on to the list as well. But as Your Honour

15 mentioned earlier on, you did say I should mention this when we come to

16 our part of the cross-examination so I'm just mentioning for the record

17 there are some additional documents, associated exhibits for this witness

18 and the previous witness. No objection from the Prosecution that they're

19 being added to the list and we will do that in due course so they are

20 there for Your Honours to consider as a full body of all the associated

21 exhibits with the witness.

22 JUDGE MOLOTO: Mr. Menon, do you concur.

23 MR. MENON: Yes, Your Honour, that is correct.

24 JUDGE MOLOTO: Thank you so much. Thank you, Mr. Dixon.

25 I saw you on your feet, Mr. Rogers.

Page 798

1 If counsel is referring to the initial statement that was

2 disclosed as being the redacted statement, then that is the statement we

3 have seen. If counsel is referring to a statement that is different from

4 the initial redacted statement sent to us in disclosure sometime ago,

5 then I don't believe that we have seen the redacted statement.

6 [Prosecution counsel confer]

7 MS. GOY: If I may just clarify. The initial statement was an

8 unredacted statement. That was the 92 bis statement of Witness 79. And

9 this is simply the redacted version for the public record.

10 JUDGE MOLOTO: Redacted version of Exhibit P1. Which is an

11 exhibit already in the trial.

12 MS. GOY: Yes.

13 JUDGE MOLOTO: Sure, fine. It should --

14 MR. GUY-SMITH: For the moment, I'm content. In the event there

15 is a problem. I will raise it.

16 JUDGE MOLOTO: It's just a redaction of Exhibit P1, sir.

17 Obviously if the statements turned out not to be P1 then it cannot be --

18 MR. GUY-SMITH: Well, I understand, but considering some of the

19 other technical issues that have arisen with regard to translations I

20 want to make sure that we're not in a position that I have agreed to an

21 admission of an exhibit and subsequently asked the Chamber for

22 reconsideration of that exhibit, which I know the Chamber will be loath

23 to do, once I've agreed to the admission of the exhibit. So with that

24 caveat in mind, I have no objection.

25 JUDGE MOLOTO: The statement is admitted into evidence. May it

Page 799

1 please be given an exhibit number.

2 THE REGISTRAR: Your Honours, 65 ter 3042.1 shall be assigned

3 Exhibit P284.

4 JUDGE MOLOTO: Thank you.

5 MS. GOY: The second application I would like to make is to

6 request leave to add a document to the Prosecution's 65 ter list. That

7 is 65 ter 03087, page 3 in e-court.

8 This document is a photograph of a victim. The Defence had been

9 notified of this addition by e-mail on the 12th of August. And, in

10 addition, that document had also been added to the witness notification

11 of Witness 78 which was provided to the Defence the same day.

12 There is, in our submission, no prejudice to the Defence

13 particularly since the document is not new to the Defence. It was

14 disclosed under a different ERN number in 2007. The document is relevant

15 and has probative value as it is a photograph of a victim in this case,

16 and the Chamber and all parties will benefit from a photograph that

17 directly relates to matters arising from Witness 78's statement.

18 And the Defence for Balaj had already indicated in an e-mail to

19 the Prosecution that they do not objection to this addition to the

20 Prosecution's 65 ter list.

21 JUDGE MOLOTO: Thank you, Madam Goy.

22 Mr. Emmerson.

23 MR. EMMERSON: I'm afraid I was not forewarned about this

24 particular matter of detail. I'm sure there'll be no difficulty,

25 assuming everything is as it would appear to be. May I just have, over

Page 800

1 the short adjournment, to clarify the position and come back with a

2 response on the record straight after we have the next break.

3 JUDGE MOLOTO: Thank you, Mr. Emmerson.

4 Mr. Harvey.

5 MR. HARVEY: I just want to double-check as well. I don't think

6 there's going to be any problem at all, though.

7 JUDGE MOLOTO: Thank you, Mr. Harvey.

8 Mr. Guy-Smith, do you --

9 MR. GUY-SMITH: [Overlapping speakers] ... Yes, I confirm the

10 position that was previously taken, yes.

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

12 The Chamber will give its order after the break when the other

13 Counsel have considered the point.

14 MS. GOY: Thank you very much.

15 JUDGE MOLOTO: It's not time for break just yet. We break up at

16 half past.

17 MR. GUY-SMITH: We do break then, Your Honour. That's correct,

18 Your Honour, but there are ...

19 [Trial Chamber confers]

20 [Trial Chamber and Registrar confer]

21 JUDGE MOLOTO: Okay I have just been reminded that the next

22 witness is the witness that is a protected witness and preparations must

23 be made.

24 We were told it takes some 20 minutes to make those preparations.

25 Yeah. We are 20 minutes from the break. Are we now going to have ...

Page 820

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 JUDGE MOLOTO: We are going to proceed according to the

11 provisions that govern a 92 bis witness who comes here to testify.

12 MR. GUY-SMITH: Okay.

13 JUDGE MOLOTO: [Overlapping speakers] ...

14 MR. GUY-SMITH: So he is subject to cross-examination.

15 JUDGE MOLOTO: Of course.

16 MR. GUY-SMITH: Period.

17 JUDGE MOLOTO: Of course.

18 Ms. Goy.

19 WITNESS: 78

20 [Witness answered through interpreter]

21 Examination by Ms. Goy:

22 Q. Could I ask the usher that the witness is handed a copy of

23 65 ter 03081. That is, the pseudonym sheet. And if I ask the

24 Court Officer that this would not be displayed to the public, please.

25 JUDGE MOLOTO: Thank you. So it stays under seal.

Page 821

1 MS. GOY: That on the screens it does not get displayed to the

2 public.

3 JUDGE MOLOTO: No, it doesn't go on the screen.

4 Yes, Madam Goy.

5 MS. GOY:

6 Q. Witness, I would ask you to look at the document before you. And

7 to read it to yourself but not read it aloud.

8 A. Should I say anything?

9 Q. Are you able to confirm that the information on the document that

10 you have before you is correct.

11 A. Yes, it's all right.

12 MS. GOY: Your Honour, I tender 65 ter 03081, under seal.

13 JUDGE MOLOTO: That is admitted into evidence. May it please be

14 given an exhibit number, under seal.

15 [Trial Chamber and Registrar confer]

16 JUDGE MOLOTO: May I warn everybody who -- to please switch off

17 their microphone when you are not the speaker, because otherwise it

18 disturbs the distortion.

19 You may proceed, ma'am.

20 MS. GOY: Thank you.

21 THE REGISTRAR: Your Honours, it's admitted as Exhibit P285,

22 under seal.

23 JUDGE MOLOTO: Thank you.

24 MS. GOY:

25 Q. Witness, did you provide a statement to the members of the Office

Page 822

1 of the Prosecutor in September 2007.

2 A. Yes, I did.

3 Q. Have you recently had the opportunity to review that statement?

4 A. Yes.

5 Q. Having reviewed your statement, I understand that you wish to

6 make a clarification to that statement. And I will read out the

7 clarification for your confirmation.

8 Regarding the relationship between Uke Rexhepaj and

9 Nesret Alijaj, you clarified that Nesret Alijaj was married to one of

10 Uke Rexhepaj's daughters.

11 Having made this clarification, and having reviewed your

12 statement, does the statement accurately reflect what you said at the

14 A. [No interpretation]

15 JUDGE MOLOTO: I have heard no interpretation.

16 THE WITNESS: [Interpretation] Yes.

17 JUDGE MOLOTO: And, Madam Prosecutor, please switch off your mic

18 when you are calling for an answer.

19 MS. GOY:

20 Q. And if you were examined today on the same issues, would you

21 provide the same answers?

22 A. Yes.

23 MS. GOY: Your Honour, before I speak to tender 03041, the

24 statement of the witness, I would request permission to add to the

25 statement a coloured photograph that's ERN 04639846, which is uploaded in

Page 823

1 e-court under the same 65 ter number. This is simply the coloured

2 version of the photograph that is attached to the witness statement at

3 page ten which is black and white and of very bad quality. We had

4 notified the Defence of this addition in the e-mail of 11 August and it

5 is, in our submission, of benefit to all the parties to have a better

6 quality picture on the record.

7 JUDGE MOLOTO: Can you confirm, Mr. Emmerson.

8 MR. EMMERSON: No objection.

9 JUDGE MOLOTO: Mr. Guy-Smith.

10 MR. GUY-SMITH: No objection.

11 MR. HARVEY: No objection. Thank you.

12 JUDGE MOLOTO: Then 65 ter 03041, together with the coloured

13 photograph, I can't see where it's -- ERN 04639846 are admitted into

14 evidence and may they please be given exhibit numbers.

15 Under seal?

16 MS. GOY: Yes, Your Honour, under seal.

17 THE REGISTRAR: As Exhibit P286, under seal.

18 JUDGE MOLOTO: [Microphone not activated]

19 MS. GOY: And I would also like to tender the redacted version of

20 that statement, which, by now, has been uploaded into e-court under

21 03041.1.

22 JUDGE MOLOTO: The redacted statement would then be admitted into

23 evidence and may it please be given an exhibit number.

24 THE REGISTRAR: Your Honours, Exhibit P287. Thank you.

25 JUDGE MOLOTO: Thank you.

Page 824

1 MS. GOY: And with Your Honours' leave, I will proceed now to

2 read a summary of the witness's evidence.

3 JUDGE MOLOTO: You may proceed, ma'am.

4 MS. GOY: Witness 78's evidence relates to the disappearances of

5 Uke Rexhepaj and Nesret Alijaj, the victims of count 2.

6 The witness heard that in May 1998 Uke Rexhepaj and Nesret Alijaj

7 were stopped between the villages of Grabanica and Dolovo, by two armed

8 men wearing military camouflage uniforms who spoke Albanian. They were

9 taken away by car.

10 Witness 78 does not know why Uke Rexhepaj and Nesret Alijaj were

11 kidnapped.

12 The witness heard that the kidnapping of Uke Rexhepaj and

13 Nesret Alijaj was reported to the SUP and the Red Cross in Klina.

14 In 2003, clothes of Uke Rexhepaj were identified in Zvecane,

15 where the ICRC did played items of missing persons from Kosovo for

16 identification.

17 That ends of summary, and with Your Honours' permission, I would

18 like to ask the witness one more question.

19 JUDGE MOLOTO: You may, ma'am.

20 MR. GUY-SMITH: Therein lies the rub of having admitted the

21 statement under 92 bis as opposed to any other fashion. If you read the

22 rules of 92 ter it does not provide for that which has been done. I'm

23 just raising it because that's what the rule says. Nothing more.

24 JUDGE MOLOTO: [Microphone not activated] ... Can you please make

25 a specific reference to 92 bis and tell us what it is your standing on,

Page 825

1 which paragraph of 92 bis.

2 MR. GUY-SMITH: I'm standing upon the paragraph that the Chamber

3 relied upon in its decision which is 92 bis(C).

4 JUDGE MOLOTO: Well, the Trial Chamber [Overlapping speakers] ...

5 MR. GUY-SMITH: And you made a determination that the witness

6 should appear for cross-examination and if it does so decide, the

7 provisions of 92 ter shall apply.

8 Looking now at 92 ter, there is no provision that allows for that

9 which is about to occur.

10 If you read 92 ter, 92 ter says:

11 "(A) a Trial Chamber may admit in whole or in part the evidence

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

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

14 conditions."

15 "i, the witness is present in court." That provision has been

16 fulfilled.

17 "ii, the witness is available for cross-examination and any

18 questioning by the Judges." That provision has yet to occur.

19 "iii, the witness attests to the written statement or transcript

20 accurately reflects that witness's declaration in what the witness would

21 say if examined."

22 That provision has been met. The provision of there being any

23 further questioning of this witness is not found in 92 ter.

24 JUDGE MOLOTO: Yes. But by practice this has always been the

25 case in this Tribunal for 92 ter witnesses.

Page 826

1 MR. GUY-SMITH: Ah, but you see, but the distinction between

2 practice and the law, specifically when you have changed a witness from

3 92 bis to 92 ter, obtains a different potential result than when a

4 witness is called by virtue of 92 ter.

5 JUDGE MOLOTO: And what are the differences.

6 MR. GUY-SMITH: I'm suggesting the difference is as follows, that

7 when a witness is called as a 92 bis witness and the Trial Chamber make a

8 determination that the witness is subject to cross-examination, that when

9 the witness appears, the witness is subject to cross-examination and no

10 further. And whether or not the practice of 92 ter is distinct, that's

11 not what the law says. At some point in time we have to deal with -- at

12 some level we have to deal with certain rules of law and there may well

13 be a practice that deals with 92 ter but it certainly doesn't deal with

14 92 bis.

15 JUDGE MOLOTO: And 92 bis clearly does say that under these

16 circumstances the provisions of 92 ter shall apply.

17 MR. GUY-SMITH: And I just read to you the provisions of 92 ter

18 that apply to this particular situation. I'm in your hands.

19 JUDGE MOLOTO: Thank you so much.

20 You may proceed.

21 MS. GOY: Could 65 ter 03087, page 3, be called up in e-court,

22 please.

23 Q. Witness, do you see the picture in front of you?

24 Witness, do you see the picture in front of you.

25 A. Yes, I have seen it.

Page 827

1 Q. Do you recognise this person?

2 A. Yes, I do.

3 Q. Can you tell the Court the name of the person.

4 A. Yes, I can. His name is Nesret Alijaj.

5 Q. Thank you.

6 MS. GOY: Your Honour, I tender this document.

7 MR. EMMERSON: No objection.

8 JUDGE MOLOTO: The document is admitted into evidence, may it

9 please be given an exhibit number. Is it under seal, ma'am, or not?

10 MS. GOY: No.

11 JUDGE MOLOTO: No, not under seal.

12 MR. GUY-SMITH: Excuse me, before you admit the document, if I

13 might have but a moment to take my position so the Chamber is aware of

14 what my position is.

15 Based on this Chamber's ruling at this time, there is no

16 objection to admission of this document. However, I will remind the

17 Chamber there has been an outstanding objection about the manner in which

18 92 ter will be used in these proceedings by the Balaj Defence which has

19 yet to be addressed by the Chamber.

20 JUDGE DELVOIE: Madam Goy, I do take it that this is not a

21 so-called associated exhibit?

22 MS. GOY: That is correct, Your Honour.

23 JUDGE DELVOIE: Thank you.

24 [Trial Chamber confers]

25 THE REGISTRAR: Your Honours, 65 ter number 3087 shall be

Page 831

1 A. No, I didn't.

2 MR. HARVEY: Could we please have on the screen 3D18000001. Not

3 for public distribution.

4 JUDGE MOLOTO: Yes, Ms. Goy.

5 MS. GOY: I would just like to notify you that we had not been

6 informed by the Defence that certain documents would be used in

7 cross-examination.

8 JUDGE MOLOTO: Mr. Harvey.

9 MR. HARVEY: That's quite right, Your Honour. I had no except

10 ation that it would necessary to show this document to the witness until

11 the denial that I had just now in relation to the signature that appears

12 upon it.

13 JUDGE MOLOTO: We did say the other day when that happens at

14 least you make an application to the Court to use the statement.

15 MR. HARVEY: I do apologise. I hereby apply, and I should have

16 done this in the proper form for this witness to be allowed to view this

17 document on the screen.

18 JUDGE MOLOTO: Ms. Goy, does that application need any response.

19 MS. GOY: That is fine, Your Honour. Thank you.

20 JUDGE MOLOTO: Am I right to assume, Mr. Emmerson, that the

21 Haradinaj Defence takes no --

22 MR. EMMERSON: No objection.

23 JUDGE MOLOTO: Mr. Guy-Smith.

24 MR. GUY-SMITH: No objection.

25 JUDGE MOLOTO: You may continue and show the witness the

Page 832

1 document.

2 MR. HARVEY: I think I may have a problem because I think it may

3 not have been released yet. I'll come back to it, if I may, in a moment

4 or two. Again, as I say, I had not anticipated the need for this

5 document which is why it hasn't been released. It will be with us very

6 shortly.

7 Q. Witness, I'm going to move to another question.

8 Did you, when you went to see the Prosecutor together with (redacted)

9 (redacted) in 2005, did you give them a photograph then?

10 A. Yes, I did.

11 MR. HARVEY: And could we have that photograph on the screen,

12 which is 04639846, which was given an exhibit number a short while ago,

13 and I apologise, I'm still looking for it.

14 JUDGE MOLOTO: That's P286, under seal.

15 MR. HARVEY: Thank you, Your Honour.

16 P286, please.

17 JUDGE MOLOTO: It is probably going to be -- 288.

18 [Trial Chamber confers]

19 JUDGE MOLOTO: I'm told it's 288. I'm sorry. You --

20 MR. HARVEY: It's on the screen.

21 JUDGE MOLOTO: Okay. We've never seen this.

22 MR. HARVEY: The Chamber has not seen this before, no.

23 Q. And that's why I want to ask you this, Witness, is this --

24 JUDGE MOLOTO: Wait a minute. If we haven't seen it before and

25 then we have seen 286 and 287 and 288, so this can't be any of those.

Page 833

1 Can you give us an ERN or a 65 ter number because I think this has yet to

2 be admitted.

3 MR. HARVEY: This was the one appended at the Prosecution's

4 request to the witness's 65 ter statement, yes.

5 JUDGE MOLOTO: My apologies. My apologies.

6 MR. HARVEY: Not at all, Your Honour.

7 JUDGE MOLOTO: Thank you so much.

8 You may proceed.

9 MR. HARVEY:

10 Q. Witness, is this the copy of the colour photograph which you gave

11 to the Prosecution in 2005?

12 A. It is.

13 Q. And did you receive that photograph originally in 2003 from a

14 lady from the Red Cross?

15 A. Yes, I did.

16 Q. And that -- she gave you that when you went to Zvecane, which is

17 just north of Mitrovica, isn't it, in the northeastern part of Kosovo?

18 A. That's in Serbian territory. Now I don't know whether ...

19 Q. Zvecane is in Serbia? Is that your testimony, sir?

20 A. I don't know where it is, whether in Kosovo or Serbia. I have no

21 idea.

22 Q. Very well. You recognised --

23 (redacted)

24 (redacted)

25 (redacted)

Page 842

1 Thank you, Ms. Goy.

2 Yes, Mr. Rogers.

3 MR. ROGERS: I'm conscious that we're coming up to a break. And

4 I'm conscious that the next witness is also a protected witness with the

5 ups and downs of the screen, and I wondering whether now is a convenient

6 moment to take the break before we get no further than swearing the

7 witness in.

8 JUDGE MOLOTO: [Microphone not activated]

9 --- Recess taken at 5.18 p.m.

10 --- On resuming at 5.47 p.m.

11 JUDGE MOLOTO: I think, Mr. Rogers, you were on your feet.

12 MR. ROGERS: Yes, Your Honour, just going to proceed -- I'm

13 sorry.

14 MR. EMMERSON: Just before Mr. Rogers does, I don't want to run

15 into the same situation that sometimes arises at the end of a session,

16 where there is insufficient time to deal with a matter that needs to be

17 raised today.

18 It's been brought to my attention that an official body of the

19 Government of Serbia known as the National Council for Cooperation with

20 the ICTY, an organ with which we are aware the OTP corresponds and

21 through whom it requests for disclosure about, in particular, Witness 81,

22 have been directed, has issued a public statement about these

23 proceedings, indicating that it has written to the President of the

24 Tribunal making representations about the adequacy of witness protection

25 measures in these proceedings and urging that steps be taken by the

Page 843

1 Tribunal to bring about certain outcomes in the case.

2 Now, clearly that type of external inference in proceedings is

3 not something which in any event will influence Your Honours, and it is

4 obviously extremely important that that message be sent out as clear as

5 can be to the outside world, because this is not a private communication;

6 this is a communication which this organisation has then publicly spoken

7 about and issued public statements about. And I have no idea, and I'm

8 not asking at this stage whether the President has communicated their

9 letter to the Trial Chamber, or what steps, if any, the Presidency have

10 taken to respond to it, but it must be said, in public and on the record,

11 that attempts by the Government of Serbia to influence this Tribunal in

12 the conduct of its judicial proceedings constitute an unacceptable

13 interference in the independence of the Tribunal, or attempted

14 interference in the independence of the Tribunal, is a completely

15 unacceptable step for such a body to be taking, and is particularly

16 worrying, given that it has been taken by a body through whom the

17 Prosecution are required to direct certain requests for information and

18 disclosure concerning protected witnesses.

19 It is, in other words, an entirely inappropriate and unacceptable

20 attempt to influence the proceedings and we wish at this stage to place

21 on record that that is the position. I'm not inviting, at this stage,

22 Your Honours to say anything further about it but presumably, at some

23 stage, and probably at some stage fairly soon, the Presidency will be

24 made aware of the communication which is being directed at the President

25 personally, and one would expect, at some point or another, the

Page 844

1 Presidency will either respond to it, or indicate that no response is

2 coming. And we would respectfully request that there be transparency in

3 relation to this.

4 JUDGE MOLOTO: I just say --

5 Yes, Mr. Guy-Smith.

6 MR. GUY-SMITH: Yes, if I may, I would join in the remarks made

7 by Mr. Emmerson and only add, the Prosecution are similarly required to

8 direct certain requests for information and disclosure concerning

9 protected witnesses through that same body. It's not only the

10 Prosecution but also the Defence.

11 So any requests for disclosure must go through that same body.

12 JUDGE MOLOTO: Thank you.

13 MR. EMMERSON: The short point, I think, on both sides is this is

14 a pivotal institution in the communication of requests for fair

15 disclosure which is stating in public that it wishes to interfere with,

16 and influence, the conduct of these proceedings in connection with

17 matters concerning witness protection, and that the proceedings thus far,

18 it considers, are not being conducted in a manner in which it would like

19 them to be conducted in.

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 853

1 Now, in 1998, in the spring of 1998, was (redacted) arrested by

2 the KLA on a road near Zabelj?

3 A. Yes. Between Zabelj and Bucane.

4 Q. And can you tell us, please, how far away that is from

5 Jabllanice?

6 A. It's not even 15 minutes on foot. 20 minutes on foot.

7 MR. ROGERS: Your Honours, the marked map, which I hope is not

8 showing in public, could I tender that as an exhibit under seal, please.

9 JUDGE MOLOTO: The marked map is admitted into evidence under

10 seal.

11 May it please be given an exhibit number.

12 THE REGISTRAR: As Exhibit P290, under seal.

13 JUDGE MOLOTO: Thank you.

14 MR. ROGERS:

15 Q. Witness, how do you know that (redacted) was arrested in the

16 spring of 1998?

17 A. I was with him.

18 Q. Could you explain, please, what happened when he was arrested?

19 A. We were coming from Bucane, we were going home, and four soldiers

20 stopped us. They came from the mountain. Two came behind us, and two

21 were in front of us and they said, "Stop here."

22 Q. How do you know that they were soldiers?

23 A. They were wearing a uniform and a patch of KLA.

24 Q. A uniform and a patch of KLA. Could you describe the patch,

25 please.

Page 854

1 A. There was an eagle and it was written, UCK.

2 Q. UCK. And where was it worn, the patch [Microphone not

3 activated].

4 A. In their arm.

5 Q. Was anything said at the time that (redacted) was arrested?

6 A. Yes, they said, "Stop."

7 Q. Did they explain why you should stop?

8 A. No.

9 Q. How do you know that (redacted) was arrested [Microphone not

10 activated]?

11 A. I asked them, "Where are you talking (redacted) to?"

12 And they said, "We're taking him to Jabllanice."

13 And I asked why. And they beat me up.

14 Q. And how did they beat you up?

15 A. With their rifle. They beat me up with their rifles.

16 Rifle-butts.

17 Q. And what happened to (redacted)?

18 A. They took him with them, to Jabllanice.

19 Q. How do you know he went to Jabllanice?

20 A. They said they're taking him to Jabllanice.

21 Q. Were you able to find out whether that was true?

22 A. Yes.

23 Q. [Previous translation continues] ... how did you find out that

24 was true?

25 A. A month later, I went there. I went to visit him, to see him, to

Page 855

1 see where he was. And I couldn't. It was not possible.

2 Q. Why was it not possible?

3 A. They did not allow me. I waited there at the door. Nobody

4 allowed me. There was sort of gate there. And there was a soldier who

5 came to see, and he said, "Don't come here anymore."

6 Q. Did you speak to anybody about wishing to see (redacted) on

7 this first occasion when you went to Jabllanice?

8 A. Only with that soldier who was wearing a beard, who came to the

9 gate. Nobody spoke to me.

10 Q. Did you know who that soldier was?

11 A. Yes. Later, I found out.

12 Q. Who was it?

13 A. Naser Ibrahimaj.

14 Q. [Previous translation continues] ... Naser Ibrahimaj.

15 And do you know whether Naser Ibrahimaj has any other relatives

16 in the village of Jabllanice?

17 A. Yes. He is a cousin of Brahimajs. Sorry, there are a lot of

18 Brahimajs.

19 THE INTERPRETER: Correction.

20 JUDGE MOLOTO: Sorry, if I may get some clarification.

21 What is Naser's surname? Ibrahimaj.

22 THE WITNESS: [Interpretation] Ibrahimaj. Yes.

23 JUDGE MOLOTO: And whose cousin do you say he is?

24 THE WITNESS: [Interpretation] I don't understand the question.

25 JUDGE MOLOTO: You were asked the question by the Prosecutor

Page 856

1 whether if you know whether Naser Ibrahimaj has any other relatives in

2 the village of Jabllanice. And you said yes. He is a cousin of

3 Brahimajs. There are a lot of Brahimajs.

4 I'm asking you to confirm that that is what you said.

5 THE WITNESS: [Interpretation] Yes.

6 MR. ROGERS:

7 Q. Witness, do you know a man called Lahi Brahimaj?

8 A. Yes.

9 Q. [Previous translation continues] ... do you know whether he is

10 related to Naser?

11 A. They are cousins.

12 Q. [Previous translation continues] ... how do you know

13 Lahi Brahimaj?

14 A. I know him since childhood.

15 Q. In 1998, for how many years had you known Lahi Brahimaj?

16 A. Since I was a kid, since I was a small child, I know

17 Lahi Brahimaj.

18 Q. Can I take you back now to (redacted). When you went to visit

19 him, whereabouts in Jabllanice did you go?

20 A. This is an house in Jabllanice. There was (redacted). As soon

21 as you enter the village.

22 Q. And from which direction would you be travelling as you enter the

23 village?

24 A. I came from Gjakove. And it goes to Jabllanice.

25 Q. Do you know a village called Glodjane, or if I can put it

Page 857

1 Catholic Glodjane, a Catholic village called Glodjane?

2 A. Yes.

3 Q. Did you come from that direction or a different direction?

4 A. No, from Grgoc, Zabelj, and then Jabllanice.

5 Q. So from Zabelj to Jabllanice. As you're entering the village of

6 Jabllanice, where is the building that you referred to, the place where

7 (redacted) was?

8 A. It's the first house on the left. When -- on the left side when

9 you enter Jabllanice from Gjakove.

10 Q. How many times did you visit that building in the spring and

11 early summer of 1998?

12 A. I was there four times; five times maybe.

13 Q. Later in 1998, did you ever visit that building again?

14 A. Yes.

15 Q. When? When in later 1998 did you visit that building again.

16 A. When I became member of the army.

17 Q. [Previous translation continues] ... forgive me. Which army are

18 you referring to.

19 A. KLA.

20 Q. Can you remember approximately the month in which you visited

21 that building in the later part of 1998 as a member of the KLA?

22 A. It was November or December.

23 Q. Were you able to, on that occasion, see the interior of that

24 building?

25 A. Yes.

Page 858

1 Q. I'd like to show you some photographs, please. The first one is

2 Exhibit P60.

3 Do you see that? I see something else.

4 A. No, I cannot see anything.

5 Q. Okay. It's appeared, as if by magic.

6 Could you just expand that, please, and just take a moment, If

7 you would, witness, to just take a look at that.

8 A. Yes, this is the house.

9 Q. And are you able to help with what the building or the buildings

10 that we can see in there, what they were used for, when you visited it in

11 1998?

12 A. In 1998, I was close to the road. There was -- there was a sort

13 of a kitchenette for the army where the soldiers would eat. And the

14 other house was -- served for other things.

15 Q. [Previous translation continues] ... and do you know what other

16 things that house was used for?

17 A. That house was where (redacted) was imprisoned.

18 Q. How do you know that house is where (redacted) was imprisoned?

19 A. (redacted) told me.

20 Q. And when did he tell you that?

21 A. When I went to visit him.

22 Q. I'd like to show you another photograph, please.

23 JUDGE MOLOTO: While we're waiting for the photograph, are you

24 able to tell us on which of the four or five visits did (redacted) tell

25 you that he was detained in that building?

Page 859

1 THE WITNESS: [Interpretation] The third visit, when I went there,

2 together with somebody else, another person.

3 JUDGE MOLOTO: Thank you.

4 Mr. Rogers, you may proceed.

5 MR. ROGERS: Thank you, Your Honour.

6 Q. Could you look, please, Witness at 65 ter 3037, page 2.

7 Do you have that picture?

8 A. Yes.

9 Q. And could you tell me, please, what it shows.

10 A. It's the outside wall, and it's a picture of the road that comes

11 from Grgoc and the main gate, the main door. And then you can see the

12 house behind. And you can see the wall. The wall does not allow you to

13 see the gate. The gate where the army stopped.

14 Q. [Previous translation continues] ... are you able to point out on

15 the photograph where the gate is, please.

16 A. You want -- the gate that goes to the yard?

17 Q. Yes, the gate that goes into the yard from the outside of the

18 road.

19 Perhaps you could just mark that, please.

20 A. [Marks]

21 Q. Now, looking at that photograph -- sorry. Looking at that

22 photograph, when you first went to visit (redacted), where were you

23 able to go? How far could you go? Were you able to get into the

24 building? Or did you have to stop before?

25 A. No. We -- you had to stop beforehand. There was a gate, so to

Page 860

1 say, a barrier that would go up and down, 30 metres before you reached

2 the gate.

3 Q. So could you just, with your pen, I wonder if you could just mark

4 on this photograph, please, where the barrier or gate was that you

5 referred to.

6 A. [Marks]

7 Q. Thank you. And did it go across the whole of the road or just

8 part of the road?

9 A. It was about 7 or 8 metres long.

10 Q. Thank you. Did it go across the whole of the road or part of the

11 road?

12 A. From this side to the other side. And they would lift it up

13 using their hand.

14 Q. Now, when you say, "they would lift it up," who are you referring

15 to?

16 A. The KLA. The army.

17 Q. The KLA. And how do you know that the people that were lifting

18 the gate were members of the KLA?

19 A. They were dressed in uniforms, armed with automatic rifles and

20 had the KLA emblem on their uniforms.

21 Q. On this first occasion when you went to visit (redacted), were

22 you able to get past this barrier?

23 A. No, it wasn't possible.

24 Q. And on this first occasion when you went to visit (redacted),

25 how long did you have to wait there?

Page 861

1 A. I had to wait for an hour or two hours, approximately. I can't

2 remember exactly how long.

3 Q. And were you allowed to see (redacted)?

4 A. No.

5 Q. Can I show you another photograph, please.

6 MR. ROGERS: I'm reminded I should make this an exhibit. Could

7 this be an exhibit, please.

8 JUDGE MOLOTO: The marked photograph is --

9 MR. ROGERS: Yes, please, Your Honour.

10 JUDGE MOLOTO: The marked photograph is admitted into evidence.

11 May it please be given an exhibit number.

12 THE REGISTRAR: As Exhibit P291.

13 JUDGE MOLOTO: Thank you.

14 MR. ROGERS: Could we please put up onto the screen 65 ter 3037,

15 page 3.

16 Q. Can you tell us, please -- do you have that picture up now,

17 Witness?

18 A. Yes.

19 Q. Can you tell me what it shows, please.

20 A. It shows the gate that leads into the yard and a sort of a garage

21 that they had.

22 Q. We can see the wall running to the right of the gate. Are you

23 able to help? When you visited this in 1998, did that wall -- is that as

24 far as the wall went, or did it carry on further?

25 A. It was just as it is now, in this photograph.

Page 862

1 MR. ROGERS: Your Honours, can this photograph be exhibited as

2 well.

3 JUDGE MOLOTO: The photograph is exhibited. May it please be

4 given an exhibit number.

5 THE REGISTRAR: Exhibit P292, Your Honours.

6 JUDGE MOLOTO: Thank you.

7 MR. ROGERS:

8 Q. Could I now show you, please, Witness, 65 ter 3037, page 4.

9 Do you have that now, a picture of a building?

10 A. Yes.

11 Q. And in 1998, can you tell me, please, what this building was used

12 for, to your knowledge?

13 A. This building was where (redacted) stayed imprisoned.

14 MR. GUY-SMITH: [Previous translation continues] ... get some

15 clarification as to time since he has indicated there were two different

16 times in which he was in the area.

17 MR. ROGERS: Yes.

18 Q. When did you acquire the knowledge that this was the building in

19 which (redacted) was imprisoned?

20 A. I was told by (redacted) when I visited him. He said, "This is

21 the house that is used as prison." And when I joined the KLA, I had the

22 opportunity to look in the inside.

23 Q. And --

24 JUDGE MOLOTO: Mr. Harvey.

25 MR. HARVEY: Your Honours, that still hasn't answered the

Page 863

1 question when. In temporal terms at least.

2 MR. ROGERS: I was just going to ask.

3 Q. When was it that you were able to view the building yourself?

4 A. In 1998, sometime in November or December.

5 Q. And from your own observations of that building, what, if

6 anything, was it that made you think it was the same place that (redacted)

7 (redacted) had described?

8 A. The only house, when you enter Jabllanice, the first house is

9 this one. There's no other house.

10 Q. In particular, in relation to this building that we're looking at

11 in the photograph, what, if anything, about it made you think it was the

12 place where (redacted) had been detained?

13 A. I wanted to know where (redacted) was kept in prison.

14 Q. Could you have a -- you see, there's a man kneeling down in the

15 photograph on the right-hand side of the photograph.

16 Do you see that?

17 A. Yes.

18 Q. From your own experience of this building, can you help us,

19 please, with what that man is kneeling down at, or near?

20 A. He's looking into a basement. Through the window of the

21 basement.

22 MR. ROGERS: Can I exhibit that photograph, Your Honours, please.

23 JUDGE MOLOTO: The photograph is admitted into evidence. May it

24 please be given an exhibit number.

25 MR. ROGERS: Can I put up now on the screen --

Page 864

1 THE REGISTRAR: Just a moment. 65 ter 3037, page 4, shall be

2 assigned Exhibit P293.

3 JUDGE MOLOTO: Thank you so much.

4 Yes, Mr. Rogers.

5 MR. ROGERS:

6 Q. Could I ask you to look now at 3037, page 5. Are you able to

7 help by looking at this photograph? Tell us, please, what it shows from

8 your own knowledge of the building.

9 A. Yes. These are the windows of the basement. The basement of

10 this house.

11 Q. And are you able to see in this photograph whether there's

12 anything in the basement?

13 A. Yes. It's full of water.

14 Q. And from your own experience, did you ever know it yourself to

15 have water in this basement?

16 A. I didn't know that myself, but (redacted) told me.

17 Q. When you visited the premises, were you ever able to see it with

18 water in the basement?

19 MR. HARVEY: Asked and answered, Your Honour.

20 THE WITNESS: [Interpretation] Yes.

21 JUDGE MOLOTO: You may -- you might as well proceed.

22 MR. ROGERS: Your Honour, he said yes, that he had seen it

23 himself.

24 JUDGE MOLOTO: [Microphone not activated]

25 MR. ROGERS:

Page 865

1 Q. In relation to the windows into the basement, do those -- as you

2 see it in the photograph, was this how you remember it yourself or is

3 this different from what you remember?

4 A. It used to be different. It had bars. It wasn't open as it is

5 now. There were bars so that those inside could not go out.

6 Q. When you were at the premises in November 1998, did you ever

7 enter this basement yourself?

8 A. Yes. I went to the basement, to the house, and everywhere, to

9 have a look for myself.

10 Q. Why did you go into the basement yourself?

11 A. Because (redacted) told me that that's where he was kept while

12 imprisoned.

13 Q. And when you went into the basement yourself, what condition was

14 it in?

15 A. In very bad condition, full of water. As soon as it rained, it

16 was filled up with water.

17 MR. ROGERS: Could I ask, please, first of all, that this

18 photograph be exhibited.

19 JUDGE MOLOTO: The photograph is admitted into evidence. May it

20 please be given an exhibit number.

21 THE REGISTRAR: Your Honours, page 5 of 65 ter 3037 shall be

22 assigned Exhibit P294. Thank you.

23 MR. ROGERS:

24 Q. Could I show you now, please, 65 ter 3052, page 1.

25 And, Witness, can you tell me, please, what this shows.

Page 866

1 A. We see water in the basement.

2 Q. The basement of what?

3 A. The basement of the house we saw earlier.

4 Q. We can see in the photograph that, certainly in the picture, it

5 appears that most of this area is filled with water; at least to a

6 certain level.

7 From your visit to this basement, can you help, please, with

8 whether this picture shows it as you saw it or whether it was different

9 when you saw it; and, if so, how was it different?

10 A. There was water up to a level as it is now. Now you can see some

11 rubbish in the bottom. At that time there weren't, but the level was the

12 same, more or less.

13 Q. Thank you?

14 MR. ROGERS: May this photograph also be exhibited.

15 JUDGE MOLOTO: The photograph is admitted into evidence. May it

16 please be given an exhibit number.

17 THE REGISTRAR: Your Honour, page 1 of 65 ter number 3052 shall

18 be assigned Exhibit P295. Thank you.

19 JUDGE MOLOTO: Thank you.

20 MR. ROGERS: Thank you. Perhaps we can take that off the screen.

21 Q. Now, Witness, I want to just clarify with you, please. The first

22 time that you went to visit (redacted), the time that you weren't able

23 to see him, could you just assist us, please, with what time of year that

24 was in 1998?

25 A. Are you referring to the first time I visited the house or the

Page 867

1 first time I visited (redacted)?

2 Q. The first time that you -- if you just listen to my question.

3 The first time that you went to see (redacted), you weren't

4 able to see him. You told us that. They wouldn't let you past the

5 barrier. I want to know what time of year that was, please, when they

6 wouldn't let you past the barrier on that occasion.

7 A. It was in 1998, about a month after he was arrested.

8 Q. And are you able to help with the season?

9 A. It was early spring.

10 Q. Was that when he was arrested or when you went to visit?

11 A. When he was arrested. The trees became green at that time.

12 Q. Now, you've told us you went to see him about a month after that

13 arrest. When -- and you didn't get in to see him. When was the next

14 time that you went to Jabllanice to try to see (redacted)?

15 A. The first time I went about a month after his arrest. And the

16 second time, it was a week, approximately, after the first attempt to

17 visit him. I went with another person, with a friend, during the second

18 time.

19 Q. And who -- without giving any names, what relationship did you

20 have to that other person that you went with?

21 A. He was a family.

22 Q. Did you go with any member of your family at any time to visit

23 (redacted)?

24 A. Yes.

25 Q. And who did you go with? Without mentioning names?

Page 868

1 JUDGE MOLOTO: Then you can't ask the question. The question is

2 who did you go with.

3 MR. ROGERS: I thought I did ask that who did you go with without

4 mentioning any names.

5 JUDGE MOLOTO: But how is he going to answer? How is he going to

6 tell you who you went with without mentioning any name.

7 MR. ROGERS: Because he can mention the relationship.

8 JUDGE MOLOTO: Ask that question in that form. How do you relate

9 to the person who accompanied you?

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)