Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1328

 1                           Wednesday, 28 September 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

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

 6     courtroom.

 7             Mr. Registrar please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in and around the courtroom.

10             This is case number IT-04-84bis-T, The Prosecutor versus

11     Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj.

12             JUDGE MOLOTO:  Thank you so much.

13             Could we have the appearances today, please, starting with the

14     Prosecution.

15             MS. KRAVETZ:  Good morning, Your Honours.  Daniela Kravetz,

16     Aditya Menon, Priya Gopalan, and our Case Manager, Line Pedersen.

17             JUDGE MOLOTO:  Thank you so much.

18             And for the Defence, starting with Mr. Haradinaj's counsel.

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

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

21     Andrew Strong.

22             JUDGE MOLOTO:  Thank you so much.  For Mr. Balaj.

23             MR. GUY-SMITH:  Gregor Guy-Smith for Mr. Idriz Balaj, together

24     with Ms. Colleen Rohan and Chad Mair.

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


Page 1329

 1             And for Mr. Brahimaj.

 2             MR. HARVEY:  Richard Harvey for Lahi Brahimaj, assisted by

 3     Mr. Luke Boenisch and Ms. Rudina Jasini.

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

 5             Yes, ma'am.

 6             MS. KRAVETZ:  Good morning, Your Honours.  If we could please go

 7     into private session.  There's a matter I wish to raise in relation to

 8     the witness who is currently on the stand.

 9             JUDGE MOLOTO:  May the Chamber please move into private session.

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17                           [Open session]

18             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

19     you.

20             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

21             Yes, Madam Kravetz.

22             MS. KRAVETZ:  Your Honour, the next witness is Mr. Mehmet Togal

23     and my colleague Mr. Aditya Menon will be leading that witness.

24             Before the witness is brought in, I do wish to raise an issue

25     regarding witness scheduling for this sitting period just so everyone,


Page 1334

 1     the parties are informed, as well as the Chamber.  Following the

 2     testimony of Mr. Togal, we will proceed with Witness 76.  The next

 3     witness should be Witness 3.  Unfortunately, that witness has had some

 4     problems arranging his travel documentation in the country where he

 5     currently resides and he is not yet here in The Hague.  We anticipate if

 6     everything goes well he should be arriving this week.  I haven't received

 7     confirmation of that but that is what we are anticipating so he should be

 8     available if everything goes well for testimony next week.  But it is

 9     unlikely that he will be able -- he won't be here this week to continue

10     after we conclude with Witness 76.

11             So I just wanted to alert the parties and the Chamber to that --

12     that matter.

13             JUDGE MOLOTO:  Are we happy with the wisdom of interposing a

14     witness in the middle of this witness's testimony?

15             MS. KRAVETZ:  I'm sorry, I didn't -- I didn't mean that.  I -- we

16     do intend to continue with Witness 77 tomorrow.  What I meant is once we

17     conclude with Witness 76, Witness 3 who was the following witness, will

18     not be here if he needs to testify this week.  I don't know how long

19     we'll be with Witness 76.  But it may happen that we conclude this week

20     and then we won't have a witness to fill until probably sometime next

21     week when Witness 3 arrives.

22             JUDGE MOLOTO:  My apologies.  Thank you so much for that

23     clarification.

24             MS. KRAVETZ: [Overlapping speakers] ... Sorry I wasn't clear.

25             JUDGE MOLOTO:  Notwithstanding, do we really need to have a

Page 1335

 1     witness in between?

 2             MR. GUY-SMITH:  I don't believe we do.  But that's entirely up to

 3     the Prosecution.

 4             My question is slightly different which is I understand we may

 5     have this witness sometime next week.

 6             JUDGE MOLOTO:  Which one.

 7             MR. GUY-SMITH:  Witness 3.  As I understand it.  For scheduling

 8     purposes and because there are some other matters that I know counsel has

 9     to attend to, I believe the Chamber may as well, does the Prosecution

10     have any idea of when next week?  Are we talking about Monday, are we

11     talking about Wednesday, because there are some other commitments that

12     exist and some planning has to be made.

13             JUDGE MOLOTO:  Madam Kravetz.

14             MS. KRAVETZ:  Your Honour, we're doing our best to speed up the

15     passport procedure in the country where the witness is residing.  We are

16     in contact with VWS on that matter.  I think we will have further

17     information this afternoon so as soon as we have that information, we

18     will circulate and e-mail to the parties and to the Chamber to inform

19     you.

20             But at present time we're still trying to get some clearance as

21     to when exactly his travel document will be ready.

22             JUDGE MOLOTO:  Thank you very much, Madam Kravetz.

23             MS. KRAVETZ:  Thank you.

24             MR. EMMERSON:  I don't know whether the Trial Chamber would think

25     later today would be opportunity just to hear some further thoughts on

Page 1336

 1     whether in fact, if there are such difficulties and given the rulings

 2     that the Trial Chamber has made since the conclusion of the last session,

 3     whether it is it in fact necessary for this witness to attend.  If there

 4     are difficulties in securing his attendance, the Trial Chamber I think is

 5     fully aware that the Defence does not require his attendance, and that

 6     the position at the moment -- I appreciate that Your Honours considered

 7     the question at the end of the last session.  But this is a witness who

 8     was called and fully cross-examined on the last occasion.  He has given a

 9     further witness statement concerning certain limited additional matters

10     which the Defence, as I understand it are prepared to agree without the

11     need for cross-examination.

12             And I did raise the practicalities on the last occasion.  But it

13     may be that some thought needs to be given to whether it is really

14     necessary for this witness to be brought here, given the -- nobody is

15     asking for him to be brought here, apart from the Trial Chamber.  It's a

16     matter for the Trial Chamber.  The Prosecution's position was to have his

17     statement admitted.  The Defence is content with that course.  And the --

18     the -- the arrangements now are proving, in practical terms, difficult.

19     And since the Prosecution applied for his witness statement to be -- and

20     testimony to be admitted, under Rule 92 and since the Defence agree with

21     that course, subject to the eliciting only of the additional information

22     which is contained in an additional statement to the Prosecution which is

23     capable of agreement, it may be that all of those difficulties can be

24     obviated.  I wonder whether it would be sensible for some thoughts to be

25     given to that today.

Page 1337

 1             JUDGE MOLOTO:  Thought might be given to that.  I'm sure thought

 2     must have been also given to the matter when the Chamber decided to call

 3     the witness, notwithstanding what you have outlined, Mr. Emmerson.

 4             As I sit here now without the decision before me, I do not have

 5     any clear recollection of the thinking of the Chamber at the time it

 6     decided the way it did.  And -- but, yes, we'll -- the Chamber will give

 7     thought to the matter in the day, and if there's any change you would be

 8     advised.  If you don't hear from us, it means there's no change.

 9             MR. EMMERSON:  Very well.

10             JUDGE MOLOTO:  Okay.

11             MS. KRAVETZ:  Yes, Your Honour, I just wanted to clarify:  It's

12     not that we have difficulties bringing him.  It is just simply a travel

13     document needed to be reissued and that's just taking some time.  And

14     Your Honours have already considered and rejected Mr. Emmerson's

15     application he is making and this is it at transcript 1119 of the -- of

16     the transcript of these proceedings and, of course, the decision

17     Your Honours issued on the 92 ter motion that we had filed.

18             Thank you.

19             JUDGE MOLOTO:  Thank you so much.

20             Yes, Mr. Harvey.

21             MR. HARVEY:  Just when you thought it was safe to carry on.

22             Just this, if this witness is indeed to be brought, there is

23     outstanding my motion which was filed last Friday -- sorry, on -- yes,

24     submitted last Friday, I think, received on Monday, in relation to

25     various items of disclosure that the Prosecution is on notice of

Page 1338

 1     concerning any assistance in any form given to witnesses who may be

 2     relocated in other countries.  From what -- I've received a blanket

 3     refusal for any information from the Prosecution.  The Chamber is seized

 4     of the motion, at least there is no response from the Prosecution and I

 5     don't expect it will be any different from what I have already indicated

 6     in the confidential annexes to my motion.  But in the event that the

 7     Prosecution, as it appears, is now giving assistance to a witness who

 8     requires a travel document, that just brings up and heightens the

 9     concerns that I have that witnesses are being given at least the

10     impression, that by assisting the Prosecution, they may be helping

11     themselves in their immigration matters.

12             Of course, the Prosecution is under a duty to provide assistance.

13     That isn't the issue.  Once the Chamber has ordered a witness to be

14     brought to attend, then, of course, the organs of the Tribunal will do

15     what is necessary to help that witness.  But it's -- there are two issues

16     here:  One, the help that is given; and, two, the impression that is

17     given in the mind of the witness that they may be helping themselves by

18     helping the Prosecution.  I'm sure the Chamber takes my point.

19             I just want to remind the Chamber, if I may respectfully, that I

20     have a motion pending, and there will have to be some decision in

21     relation to that before this witness is called to testify.

22             Thank you.

23             JUDGE MOLOTO:  Wait a minute, Mr. Harvey.  I'm not quite sure

24     what that last statement is correct.

25             There's a motion before us.  It has got to be responded to.

Page 1339

 1     There might be a reply and only after then can the Chamber give you a

 2     decision.  Are you saying do you ask that, pending the decision, all

 3     witnesses who are affected by that motion not be called in your motion?

 4             MR. HARVEY:  I need to double-check my motion to see whether I

 5     have formally asked for that, and it may be that I will need to formally

 6     ask for that.

 7             Much depends on the ambit of this witness's testimony.  As we

 8     stand here, our understanding is that he is only being called to testify

 9     to the additional matters that he -- that he provided a further statement

10     to the Prosecution earlier this year.

11             JUDGE MOLOTO:  As we heard this morning, and in a couple of days

12     before, none of the parties wanted this witness to come for

13     cross-examination.  So the parties seem to be quite happy about this

14     witness's testimony.  This witness is coming here because the Chamber

15     wants him to come here.

16             MR. HARVEY:  Your Honour, absolutely.  But since I don't know

17     what this witness is going to say when he gets here, there may be

18     additional matters that will come out that will require

19     cross-examination.  That's all.

20             JUDGE MOLOTO:  Fair enough.  I understand that [Overlapping

21     speakers] ...  that I understand.  But why -- why should we pend the

22     witness's attendance in court pending your -- pending the decision on

23     your motion?

24             MR. HARVEY:  Well, Your Honour, I haven't actually asked you to

25     suspend his appearance.

Page 1340

 1             JUDGE MOLOTO:  That's why I'm commenting on what you were saying

 2     earlier on which I said didn't think it was absolutely correct because it

 3     doesn't stand in your motion.

 4             MR. HARVEY:  You are quite right.

 5             JUDGE MOLOTO:  Thank you.

 6             MR. HARVEY:  And let me reflect on it.  If I do think it

 7     appropriate to ask you, then I will formally ask you.  I have not asked

 8     you, and I will therefore sit down right now.

 9             Thank you.

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

11             MS. KRAVETZ:  Your Honour.

12                           [Trial Chamber confers]

13             JUDGE MOLOTO:  I see you're on your feet.

14             MS. KRAVETZ:  Yes, Your Honour --

15             JUDGE MOLOTO:  I guess everybody wants to spend this time in

16     court today.

17             Okay.

18             MS. KRAVETZ:  I just wanted to clarify one matter in relation to

19     what Mr. Harvey said.  He said that we appeared to be giving assistance

20     who requires a travel document.  It is, in fact, VWS that's making the

21     arrangements.  I believe I said that.  And we have been in contact with

22     VWS in relation to those travel arrangements.  So -- it's -- that is

23     completely an incorrect statement.

24             JUDGE MOLOTO:  Sure.  And Mr. Harvey did indicate that he is

25     quite aware that the organs of the Tribunal are duty-bound to give

Page 1341

 1     assistance to witnesses who are supposed to come here.

 2             Thank you so much, Madam Kravetz.

 3             I guess there's nothing else from anybody.

 4             Mr. Emmerson, you don't have anything to raise.  Thank you very

 5     much.

 6             Mr. Guy-Smith?  Nothing.

 7             And Mr. Harvey, nothing.

 8             Thank you so much.  We'll then stand adjourned and come back

 9     tomorrow at 9.00.

10             Court adjourned.

11             MR. EMMERSON:  I think there may be a cross communication.  I

12     think we're all expecting to proceed with the evidence today,

13     Your Honour.

14             MS. KRAVETZ:  Yes, we have -- witness Mehmet Togal is waiting.

15     We believe that he is going to be quite a short witness and we believe

16     that he will complete his evidence today.

17             MR. EMMERSON:  [Overlapping speakers] ...

18             MS. KRAVETZ:  I think we may have been speaking at

19     cross-purposes.

20             JUDGE MOLOTO:  Indeed, because I did ask about the wisdom of

21     interposing a witness in the middle of somebody else's testimony and I

22     thought I got the impression that the answer that said, no, it's not

23     going to happen.

24             MR. EMMERSON:  No, I think the answer that Ms. Kravetz gave you

25     was we are going to proceed, in fact.  The suggestion, I think, is now

Page 1342

 1     that we go straight ahead with Mr. Togal, deal with him, and then move

 2     straight into Witness 76 and we can use the whole day.

 3             MS. KRAVETZ:  Yes.  That is the suggestion and next -- tomorrow

 4     morning we can start with Witness 77, conclude him, and then continue --

 5             JUDGE MOLOTO:  So you plan to finish two witnesses today, this

 6     one and 76.

 7             MS. KRAVETZ:  I do not know if we will be able to finish both

 8     witnesses, but at least Mr. Togal I'm pretty confident we will be able to

 9     conclude his evidence.  Thank you.

10             JUDGE MOLOTO:  All right.  Thank you so much, Madam Kravetz.

11     Call your witness.

12             MS. KRAVETZ:  The Prosecution calls Mr. Mehmet Togal, and my

13     colleague Mr. Menon will be dealing with that witness.

14             JUDGE MOLOTO:  Thank you so much.

15             Mr. Menon, good morning.

16                           [Trial Chamber confers]

17             JUDGE MOLOTO:  This witness still at the hotel?

18             MR. MENON:  Your Honour, I believe the witness is here.

19             JUDGE MOLOTO:  Thank you.

20                           [The witness entered court]

21             JUDGE MOLOTO:  Good morning, sir.  May you please make the

22     declaration.

23             THE WITNESS:  I solemnly declare that I will speak the truth, the

24     whole truth, and nothing but the truth.

25             JUDGE MOLOTO:  Thank you very much.  You may be seated.  And good


Page 1343

 1     morning to you.

 2             THE WITNESS:  Thank you.  Good morning.

 3             JUDGE MOLOTO:  Yes, Mr. Menon.

 4                           WITNESS:  MEHMET TOGAL

 5                           Examination by Mr. Menon:

 6        Q.   Good morning, Mr. Togal.

 7        A.   Good morning.

 8        Q.   I see that Mr. Togal has the statement that he has given.  I

 9     don't think he needs it for this purpose so whatever I deal with --

10     whatever I show him will be brought up in e-court or shown to him in hard

11     copy so if the Court Usher could recover the binder in front of him.

12             Sir, I would ask that after I pose a question to you, that you

13     allow for a slight pause before answering since we're both speaking in

14     English.  This will allow the court interpreters time to catch up with

15     the question I'm posing to you.

16             Let me begin, sir, by just asking you to state your full name for

17     the record?

18        A.   My name is Mehmet Oguz Togal.

19        Q.   And, sir, what is your date of birth?

20        A.   17 January 1968.

21        Q.   And your place of birth, sir?

22        A.   Antakya.

23        Q.   And in which country is that, sir, Antakya?

24        A.   Hatay province of Turkey.

25        Q.   Thank you, sir.  Sir, did you provide a signed statement to the

Page 1344

 1     Office of the Prosecutor of this Tribunal on the 10th of December, 2010?

 2        A.   Yes, I did.

 3        Q.   And, sir, have you had a chance to review that statement again

 4     after you arrived in The Hague?

 5        A.   Yes, I did.

 6             MR. MENON:  And, Your Honour, if we could call up on e-court

 7     65 ter 3073.  And if we could go to page 4 of that document.  Actually,

 8     if we can just stay on the cover page for a second.

 9        Q.   Sir, is this the statement that you provided on the 10th of

10     December, 2010?

11        A.   Yes, it is.

12        Q.   If we could go to page 4 of the document.

13             And, sir --

14             JUDGE MOLOTO:  Just a second.  I'm not quite -- this first page

15     says date of telephone interview 1st and 2nd of August, 2010.  And you're

16     saying the statement was 10th of December, 2010.  Do we have a different

17     date somewhere that I'm not seeing?

18             MR. MENON:  Yes, we do, Your Honour.  If you were to go to the

19     last page of the statement you will see the date on which the witness

20     signed the statement.

21             MR. GUY-SMITH:  Well, perhaps you wish to confirm that as being

22     the date he signed the statement [Overlapping speakers] ...

23             MR. MENON:  [Overlapping speakers] ...  I can do that.

24        Q.   Sir, can we go back to the first page then.

25             You see there, it's not -- sir, you see the reference to

Page 1345

 1     telephone interview on the 1st and 2nd of August, 2010.  Can you confirm

 2     for us, sir, that you were, in fact, interviewed via telephone on those

 3     dates by a Prosecution investigator?

 4        A.   Yes, I do.

 5        Q.   And if we could go to the last page of the document.

 6             Is that your signature on the document in front of you, sir?

 7        A.   Yes, sir.

 8        Q.   And --

 9        A.   It's my signature.

10        Q.   Thank you, sir.  Can you confirm for us, sir, again, that you

11     signed this document on the 10th of December, 2010?

12        A.   Yes, I did.  I sign it and -- I sign it, and I made it to court,

13     to Prosecution office.

14        Q.   If we could now go back to page 4 of the document.

15             Sir, I would just ask that you read paragraph 11(C) in front of

16     you.  And once you've done that, just let us know.  I don't --

17        A.   Yes.

18        Q.   Have you finished reading that, sir?

19        A.   Yes, I did.

20             MR. MENON:  Your Honour, with the Court's permission, I would ask

21     that the witness be shown 65 ter 3003 which is among the documents listed

22     for this particular witness, and I have the hard original version of it.

23     It will make it a little more efficient if the witness sees the hard copy

24     of it.

25             JUDGE MOLOTO:  Is only my computer that is seized?  Mine was ...

Page 1346

 1                           [Trial Chamber and Registrar confer]

 2             JUDGE MOLOTO: [Microphone not activated] ... you may proceed.

 3                           [Trial Chamber and Registrar confer]

 4             MR. MENON:

 5        Q.   Sir, you have the document in front of you.  Can you just confirm

 6     for us that the document that you referred to in paragraph 11(C) of your

 7     statement is the same document that you have in your hand right now?

 8        A.   Yes, I do.

 9             MR. MENON:  That's 65 ter 30003.

10        Q.   And can you note for the record -- can you just turn to the front

11     of that document -- the front.  What is the eight-digit number on the

12     front of that document, sir.  Can you read that out?

13        A.   U0083555.

14        Q.   Thank you, sir.  And can you open the first page of that

15     document, sir?

16        A.   Yes.

17        Q.   And in your statement you indicated:  "I have noticed on page

18     U0083557 that there is my handwritten name 'M. Oguz Togal' with proper

19     diacritics and dated 19/06/2002."

20        A.   It should be U0083556.

21        Q.   That's the page on which your name and date appear?

22        A.   Yes.

23        Q.   Thank you, sir.

24             If the Court Usher can just get the document back for me.

25             Beyond those corrections, sir, are there any other corrections

Page 1347

 1     which need to be made to the statement you signed on 10th December 2002

 2     [sic]?

 3        A.   No, everything I stated in the statement is right and correct.

 4        Q.   And, sir, if you were asked now with the exceptions of the

 5     corrections that you have just made, if you were asked questions about

 6     the subject matter in the statement which you signed, would your answers

 7     reflect what is contained in that statement?

 8        A.   Do you want me explain what I wrote in the statement?

 9        Q.   No.  I just want you to confirm for us whether, if I were to ask

10     you questions about what's contained in your statement, whether your

11     answers would be the same as what is already in the statement.

12        A.   Yes.  It's same.

13        Q.   Okay.

14             MR. MENON:  Your Honour, I think there is a problem with e-court

15     or LiveNote.  I don't know if everybody is having that problem.

16             JUDGE MOLOTO:  That's why I had a technician here next to me

17     right now.

18             MR. MENON:  Mine is frozen.  I'm happy to proceed obviously.  I'm

19     not sure how the other parties feel.

20             MR. EMMERSON:  Mine is active.  That is because it is appearing

21     on the central computer screen.

22             JUDGE MOLOTO:  I'm carrying on the central computer screen.  The

23     other one is [Overlapping speakers].

24             MR. MENON:  I'm happy to proceed though.

25             JUDGE MOLOTO:  Yeah, proceed.

Page 1348

 1             MR. MENON:  Your Honour, I believe that the witness indicated

 2     that he would -- his answers would be the same if he were asked the same

 3     questions in relation to the statement which he signed.  And on that

 4     basis I would seek the admission of this particular statement which is

 5     65 ter 03073.

 6             JUDGE MOLOTO:  Okay.  65 ter 3073 is admitted.  May it please be

 7     given an exhibit number.

 8             THE REGISTRAR:  Your Honour, 65 ter 03073 shall be assigned

 9     Exhibit P302.

10             MR. MENON:  And I would seek the admission, as well, of

11     associated exhibits.

12             JUDGE MOLOTO:  Yes, Mr. Menon.

13             MR. MENON:  I would seek the admission of associated exhibits of

14     65 ter numbers 3003, 3004, and 3005.

15             JUDGE MOLOTO:  I have been aware of 3003.  What is 3004 and what

16     is 3005?

17             MR. MENON:  3004 is the search record against documents relating

18     to the -- contains documents relating to the search that was conducted by

19     the witness.  It's among the documents that we listed in our 92 ter

20     application as associated exhibits.

21             3005 is a single document that is actually duplicated within

22     3004.  It's probably redundant to admit 3005, but it was on our

23     application.

24             JUDGE MOLOTO:  Sure, but my problem is that we can only admit

25     things that that witness has looked at and he has looked at 3073 and

Page 1349

 1     3003.  In court here, he hasn't identified 3004 and 3005.

 2             MR. MENON:  He has identified it in his statement and so the

 3     statement is in evidence [Overlapping speakers] ...

 4             JUDGE MOLOTO:  It's an annex to the statement.

 5             MR. MENON:  The document itself is commented upon by the witness

 6     in his statement.  I can refer Your Honours to the relevant paragraphs so

 7     since the statement itself is in evidence, obviously, his comments on

 8     those documents -- on those documents are also a part of the record.

 9             JUDGE MOLOTO:  I understand you -- [Overlapping speakers] ...

10             MR. MENON:  That would be a sufficient basis for the admission of

11     the documents.

12             JUDGE MOLOTO:  Thank you so much.

13             Mr. Guy-Smith.

14             MR. GUY-SMITH:  Yes, my microphone is not working so I am

15     speaking a bit louder right now.

16             Apparently, this one is working now.

17             Now it is working.  Excellent.

18             I think it might be a bit easier for just for purposes of clarity

19     of the record with regard to 3004 that Mr. Menon go through the process

20     of having Mr. Togal take a look at that particular associated exhibit and

21     confirm or deny his familiarity with the, so we're clear about each and

22     every document that is coming in with this particular witness.

23             Now 3005 I'm not sure what my position is yet because I believe,

24     as he says, it is redundant so it's irrelevant and shouldn't be put in.

25     And I take it that Mr. Menon at this point is not attempting to introduce

Page 1350

 1     the document Mr. Togal looked at, which was 3003.  Because if he is

 2     attempting to do this at this point in time, then there is a pending

 3     issue with regard to the admissibility of this document and its probative

 4     value based upon this Court's order and decision of the 23rd of August,

 5     2011, paragraph 47, in which the Chamber stated, and I quote:

 6             [As read] "At the outset the Chamber takes account of the

 7     Appeals Chamber ruling holding that 'the difference context in which the

 8     two trials are held mean that evidentiary decisions proper in one case

 9     may not be proper in the other.  In this situation the proper of

10     inconsistency on an evidentiary point between a trial and a retrial is

11     not unfair.'"

12             This was an issue that we had raised because the previous

13     Trial Chamber had ruled this particular document, and by that I mean,

14     3003 inadmissible.

15             "The expected evidence of Mehmet Togal who seized the notes in

16     the Accused Balaj's home may cast light on the circumstances surrounding

17     his discovery of the diary.  In light of the above, the Chamber will

18     allow hearing the testimony of Mehmet Togal to assist in determining the

19     diary 's probative value and admissibility.  The Chamber will defer its

20     decision on the admissibility of the diary and will admit Mehmet Togal's

21     statement into evidence, once Rule 92 ter(A) is complied with.  If he is

22     available for cross-examination and attests to the accuracy of his

23     written evidence.  The Chamber does not find that doing so after renewed

24     litigation prejudices the accused."

25             Based upon this Chamber's decision, we haven't reached the point

Page 1351

 1     where the admissibility of what has been termed as Mr. Balaj's diary -

 2     and that is a point of contention - is yet admissible.  His statement is.

 3     Diary, as it's been termed, is not.  And Mr. Menon knows that.  Because

 4     he is aware of the decision.

 5             MR. EMMERSON:  Can I add a few words, please, if only because the

 6     parties were joined on this issue in litigation and submissions were made

 7     by both Haradinaj Defence and the Balaj Defence which culminated in the

 8     decision of the 23rd of August.

 9             Just to remind Your Honours, the background to this issue was a

10     decision of the original Trial Chamber in November 2007, the 30th of

11     November, 2007, paragraph 11, the reason why this document was to be

12     regarded as inadmissible was because there was no evidence as to the

13     handwriting in which it was compiled, and, therefore, authorship.  No

14     evidence as to the source of the information substantively contained

15     within it or the way in which the source and the author may have

16     communicated and therefore it was impossible to establish probative value

17     of the substance of the notes.

18             That's obviously not something that Mr. Togal is in a position to

19     assist with at all.

20             So the basis for the original Trial Chamber's decision was that

21     these were notes, the authorship of which was unproven and incapable of

22     being proved, and that the source of the information was unknown.

23             Submissions were made to this Trial Chamber on behalf of both

24     Mr. Balaj and Mr. Haradinaj that the same ruling should follow, not

25     because it was binding but because there was no difference in context

Page 1352

 1     between this trial and the previous trial which would justify a different

 2     evidentiary ruling.  The Appeals Chamber has indicated in the passage

 3     that Mr. Guy-Smith just read to you that if the context is different, if

 4     there is a different relevance equation, then conflicting evidentiary

 5     decisions would say not be unfair.  But, of course, the flip side of that

 6     coin is, unless the Prosecution can show that the relevance matrix is

 7     different in this trial in relation to that document than it was in the

 8     last trial, then conflicting rulings would be unfair.

 9             The Trial Chamber ruled that the issue of admissibility of the

10     document, the diary, would be deferred, and wished to hear the testimony

11     of Mr. Togal in order to assist in general terms in -- in determining its

12     probative value and admissibility.  That's paragraph 47 of this

13     Trial Chamber's decision of the 23rd of August of this year, passage that

14     Mr. Guy-Smith read out to you.  In other words, you have deferred

15     determination of admissibility pending the testimony of Mr. Togal.  But,

16     of course, Mr. Togal's testimony cannot begin to touch upon the reasons

17     why the original Trial Chamber determined that this was inadmissible and

18     the ruling of the Appeal Chamber is that conflicting decisions on

19     admissibility will be fair if there is a difference relevance matrix.  In

20     other words if it is relevant to some different issue.  So the suggestion

21     of Mr. Menon that simply by admitting the statement of this witness it

22     produces the exhibit is obviously wrong.

23             But more fundamentally the Trial Chamber is going to have to ask

24     Mr. Menon to explain what is different in this trial that would justify a

25     different evidentiary ruling because what the Appeals Chamber did not say

Page 1353

 1     was this Trial Chamber could fairly reach contradictory rulings on the

 2     same factual and materiality basis.  In other words, what the

 3     Appeals Chamber naturally indicated is that if the issues of relevance

 4     are different then a different ruling can follow fairly.  But if the

 5     issues of relevance are the same, then obviously the reverse is true.

 6             MR. MENON:  May I respond to that.

 7             JUDGE MOLOTO:  Of course, you may, Mr. Menon.

 8             MR. MENON:  Frankly, I think Mr. Emmerson is reading something

 9     into the Appeals Chamber decision which simply is not there.

10             I can read the relevant passage, and what the Appeals Chamber

11     simply said is that it was unconvinced by Haradinaj's contention that

12     decisions regarding the admission of evidence made in the context of his

13     first trial should be binding on the Trial Chamber conducting his

14     retrial.

15             The different context in which two trials are held mean that

16     evidentiary decisions proper in one case may not be proper in another

17     case.  That's for Your Honours to decide.

18             MR. EMMERSON:  [Overlapping speakers] ... Could you read the

19     following sentence, please.

20             MR. MENON: [Overlapping speakers] ... Let me finish.

21             MR. EMMERSON:  Following sentence.

22             JUDGE MOLOTO:  Mr. Menon.

23             Mr. Emmerson, when you speak and you spoke for a long time,

24     nobody interrupted you.

25             MR. MENON:  I'll read the next sentence, but just let me finish.

Page 1354

 1             "In this situation, the prospect of inconsistency on an

 2     evidentiary point between a trial and a retrial is not unfair and does

 3     not risk jeopardising public confidence in the administration of justice

 4     by the Tribunal."

 5             Your Honours, it is for Your Honours to decide, based on the

 6     circumstances of this case, whether this particular exhibit has --

 7     Exhibit 3003 has sufficient probative value to be admitted and it has to

 8     be determined that to a prima facie standard.  That's for Your Honours to

 9     decide.  You're not bound by what the prior Trial Chamber decided.  I

10     think you made that clear on various occasions during this particular

11     case.

12             Now, in terms of this witness's evidence, the limits of his

13     evidence are known to everybody and I don't think that the Trial Chamber

14     would have allowed the Prosecution to -- to call the witness if it didn't

15     consider that his evidence would have served as a sufficient basis for

16     admitting this particular exhibit.

17             JUDGE MOLOTO:  You see, the problem, Mr. Menon, is that at this

18     stage, the -- the Prosecution has not indicated the purpose for which

19     this exhibit is being tendered, and therefore the presumption is that it

20     is being tendered for the truthfulness of its contents.

21             MR. MENON:  Yes.

22             JUDGE MOLOTO:  Now the question is can this witness attest to

23     that?

24             MR. MENON:  He can for the purposes of admissibility,

25     Your Honour.  The standard on admissibility is a prima facie standard.

Page 1355

 1     So it has to be apparent on its face, on the face of the evidence, that

 2     this exhibit is admissible through this witness's evidence.  And what

 3     this witness establishes through his evidence is that this particular

 4     diary was recovered in Idriz Balaj's home in a bedroom -- in the bedroom

 5     of Idriz Balaj's home, amongst his personal items.  The exhibit itself is

 6     written from Mr. Balaj's perspective.  It contains his name, date of

 7     birth, and place of birth on the third page.  That, in our view, Your

 8     Honours, is sufficient to meet the standard, a prima facie standard.

 9             In terms of how the prior Trial Chamber ruled, well, frankly,

10     they imposed a standard which was far too high in insisting on

11     authorship, on absolute certainty with respect to authorship.

12             So I would submit, Your Honours, that the exhibit is admissible

13     and, frankly, when I look at the 92 ter decision that Your Honours

14     issued, I don't see any distinction between this particular exhibit or

15     any other associated exhibit.  In fact, in the disposition, all that

16     Your Honours indicated was that it would defer its decision on the

17     admission of items tendered as associated exhibits until the time when

18     the witnesses through whom these items are proposed to be tendered appear

19     in court.  So there is no distinction between this particular exhibit,

20     3003, and any of the other associated exhibits.

21             Now the witness has -- has -- his statement has been admitted

22     into evidence there is a sufficient basis there within his statement to

23     admit this particular diary because there -- the prima facie standard for

24     admissibility has been met.

25             JUDGE MOLOTO:  I -- I don't -- I don't argue with that.  What I

Page 1356

 1     do argue with in your argument is the purpose for which it is being

 2     tendered.

 3             MR. MENON:  Your Honour, yes, it is being tendered for the truth

 4     of the -- the truth of its contents.  There is no question about that.

 5             JUDGE MOLOTO:  But can the witness testify to that?  He has just

 6     said -- he has just said in his statement, the written statement that has

 7     been tendered, P302, that he doesn't -- he didn't even read the contents

 8     because he doesn't even know the language.  He can't tell us anything

 9     about the authenticity of the contents.

10             MR. MENON:  Your Honour, but our submission is for the purposes

11     of making an admissibility ruling his evidence is sufficient.

12             As far as the weight that Your Honours decide to give to the --

13     this particular exhibit, well, that's a matter for Your Honours to

14     consider once you have received all of the evidence, once you have heard

15     all of the evidence.  And, at that point, you may or may not decide to

16     give this particular exhibit weight.  You may decide to give it much

17     weight; you may decide to give it very little weight.  That is a

18     determination to be made at a later stage, once the parties have made

19     submissions on the evidence.

20             JUDGE MOLOTO:  The question of weight is different from the

21     question of purpose.

22             Anyway I have heard you, and I [Microphone not activated].

23                           [Trial Chamber confers]

24             JUDGE MOLOTO:  The Chamber by majority, Judge Delvoie dissenting,

25     will not admit the diary.

Page 1357

 1             MR. EMMERSON:  I have no questions, Your Honour.

 2             JUDGE MOLOTO:  Pardon.

 3             MR. EMMERSON:  I have no questions in cross-examination in those

 4     circumstances.

 5             JUDGE MOLOTO:  I don't know whether Mr. Menon is finished with

 6     his examination-in-chief.

 7             MR. MENON:  I haven't, Your Honour.  I would actually ask whether

 8     the Chamber tends to follow it up with a written decision because we

 9     obviously may seek certification to appeal the decision or other

10     remedies.

11             JUDGE MOLOTO:  [Microphone not activated]

12             MR. MENON:  And then the other issue is I'm not sure if Mr. Balaj

13     still requests further clarity on the other associated exhibits, but I

14     don't think that the same issues with respect to --

15             JUDGE MOLOTO:  You took the position that 3005, you, yourself,

16     said, it is redundant, and therefore he suggests that he get it out of

17     the file.

18             MR. MENON:  I would still ask that 3004 be admitted into

19     evidence.  It's the search record.  The witness talks about it in

20     paragraph 7, 8, and 11(D) of his statement and they meet the standard for

21     an associated exhibit.

22             JUDGE MOLOTO:  Mr. Guy-Smith.

23             MR. GUY-SMITH:  No objection.

24             JUDGE MOLOTO:  Well, Mr. Registrar, 3004, can we give it a

25     number, please.  The document is admitted into evidence.

Page 1358

 1             THE REGISTRAR:  Your Honours, 65 ter number 3004 shall be

 2     assigned Exhibit P303.  Thank you.

 3             JUDGE MOLOTO:  Thank you.

 4             MR. MENON:  With Your Honours' leave, I'll read out the 92 ter

 5     summary for this particular witness.

 6             JUDGE MOLOTO:  Thank you.  You may proceed, Mr. Menon.

 7             MR. MENON:  The witness is a member of the Turkish police.

 8     Between the 14 April 2002 and 16 April 2003, the witness was seconded to

 9     work as a police officer --

10             COURT REPORTER:  Slower, please.

11             MR. MENON:  -- for the UNMIK civilian police.  The witness worked

12     with the Central Criminal Investigation Unit of the UNMIK police.  He was

13     deployed to the drug team.

14             On 18 June 2002, the witness participated in a search of

15     Idriz Balaj's home in Djakovica municipality.  Among the items which the

16     witness found during the search were a handwritten notebook, and Idriz

17     Balaj's KLA identification card.  These items were found in the bedroom

18     of Idriz Balaj's home.  All the items recovered during the search of

19     Idriz Balaj's home were handed over to the police officer who was in

20     charge of the Central Criminal Investigation Unit safe room.

21             That ends my 92 ter summary of the witness, Your Honour, and I

22     have no further questions for this witness.

23             JUDGE MOLOTO:  [Microphone not activated]

24             MR. EMMERSON:  No questions, Your Honour.

25             JUDGE MOLOTO:  [Microphone not activated]


Page 1359

 1             MR. GUY-SMITH:  Based on the ruling made by the Chamber, I have

 2     no cross-examination.

 3             JUDGE MOLOTO:  [Microphone not activated]

 4             MR. HARVEY:  No questions.  Thank you, Your Honours.

 5             JUDGE MOLOTO:  [Microphone not activated].

 6             Sir, that brings us to the end of your testimony for the day.

 7     Thank you so much for coming to testify at the Tribunal.  You are now

 8     excused.  You may stand down and travel well back home.

 9             THE WITNESS:  Thank you.

10             JUDGE MOLOTO:  You're welcome.

11                           [The witness withdrew]

12             MR. MENON:  Your Honour, I am alerted that we are to the fact

13     that we are in a position to proceed with the next witness.  She is a

14     protected witness so we'll need to take an early break so that they can

15     set up the screen.

16             JUDGE MOLOTO:  Okay.  We're ten minutes from the next break so we

17     will have a ten-minute longer break.

18                           [Trial Chamber confers]

19             JUDGE MOLOTO:  How long is this witness likely to take?  Are we

20     going to finish her today?

21             MR. MENON:  I'm told that this witness, at least for the

22     Prosecution, that our direct examination should not exceed 30 minutes.

23     I'm not sure how much cross-examination the Defence counsel will have.

24             MR. HARVEY:  Your Honours, I will be bearing the brunt of most,

25     if not all, of the cross-examination of this witness.  Without having

Page 1360

 1     seen how she responds to questioning, it is very difficult for me to say.

 2     I have potentially substantial cross-examination for this witness and we

 3     may not finish her today.

 4             JUDGE MOLOTO:  That's going to cause a logistical problem because

 5     tomorrow we must finish 77 or carry on with 77.

 6             If can you take a seat, Mr. Emmerson.

 7             MR. HARVEY:  I can say in relation to 77, having consulted with

 8     my colleagues, first of all, that I have no cross-examination

 9     [Overlapping speakers] ...

10             JUDGE MOLOTO:  I understand that.

11             MR. HARVEY:  I know that their cross-examination is unlikely to

12     exceed an hour, maybe possibly maximum hour and a half.

13             JUDGE MOLOTO:  We don't know how long the re-examination is going

14     to take.  The problem is -- what the Chamber would like to avoid is

15     hearing this next witness now partly and then having to put -- put aside

16     and go back to 77 and then come back to this witness.  This is what we

17     are trying to avoid.

18             MR. HARVEY:  I appreciate that.  It -- I can't give a guarantee.

19     It may well be that I will be done with this witness today but we've all

20     been there.

21             JUDGE MOLOTO:  You've said to me now to the Chamber now that are

22     you -- you can't guarantee that.

23             Yes, Mr. Emmerson.

24             MR. EMMERSON:  Can I just indicate, being practical about this,

25     what is left of Witness 77 is not going to take more than one session in

Page 1361

 1     total.

 2             JUDGE MOLOTO:  But you don't know how much re-examination is

 3     going to take.

 4             MR. EMMERSON:  I don't know -- [Overlapping speakers] ...

 5             JUDGE MOLOTO:  [Overlapping speakers] ...

 6             MR. EMMERSON:  Ms. Kravetz can perhaps give us an idea.

 7             MS. KRAVETZ:  Yes, Your Honour, I can give an idea with regard to

 8     the cross-examination that's taken place so far, so far I have maybe 20

 9     minutes of re-direct but I know there is going to be further

10     cross-examination, so I may be longer in re- exam.

11             What I would suggest, Your Honours, is that we proceed with the

12     next witness and conclude her tomorrow morning and then deal with the

13     remainder of Witness 77's evidence.  That way we use the rest of today.

14     The witness is here and she's ready to be brought into court.

15             MR. EMMERSON:  I totally endorse that approach, if I may say so,

16     because if it's 20 minutes, even if there's another ten, which there

17     won't be from the last few questions I have - I had almost finished

18     cross-examination - we will undoubtedly finish Witness 77 in -- within

19     less than one session.  That being the case there are two sessions spare

20     tomorrow to complete this witness's evidence, and frankly, given the

21     compass of her evidence, it's, I would have thought, inconceivable that

22     we would over-run.

23             JUDGE MOLOTO:  Okay, fine.  We'll call this witness after the

24     break.

25             We will take a break now and come back at quarter to.


Page 1362

 1             Court adjourned.

 2                           --- Recess taken at 10.09 a.m.

 3                           --- On resuming at 10.47 a.m.

 4             JUDGE MOLOTO:  May the Chamber please move into closed session.

 5             MS. GOPALAN:  Before the witness is brought in, I have a few

 6     words to say.

 7             JUDGE MOLOTO:  Okay.  Before we do that, just hold it.  Hold it.

 8     Before we move into closed session.

 9             Yes, ma'am.

10             MS. GOPALAN:  I'd just like to introduce a new team member who

11     has joined us this morning, Mr. Andrej Micovic.  He is a legal intern on

12     the case.

13             JUDGE MOLOTO:  Thank you so much.

14             MS. GOPALAN:  And could we please move into private session,

15     Your Honours.

16             JUDGE MOLOTO:  May the Chamber please move into private session.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1363











11 Page 1363 redacted. Private session.
















Page 1364

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Closed session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 1365

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

25             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.


Page 1366

 1             Thank you, Madam Gopalan.  You may proceed.

 2             MS. GOPALAN:

 3        Q.   Ma'am, could I just ask you if you're able to hear me well in a

 4     language that you understand?

 5        A.   No.  Oh, yes.  Yes, I am.

 6        Q.   So you are able to hear me clearly?

 7        A.   Yes.

 8        Q.   Thank you.

 9             MS. GOPALAN:  Your Honours, could we move into private session,

10     please.

11             JUDGE MOLOTO:  May the Chamber please move into private session.

12                           [Private session]

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)

Page 1367

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we are back in open session.

 4             JUDGE MOLOTO:  Thank you.

 5             Yes, Madam Gopalan.

 6             MS. GOPALAN:

 7        Q.   Ma'am, did you provide a statement to the Office of the

 8     Prosecutor in September 2010?

 9        A.   Yes.

10        Q.   And have you recently had your statement read back to you?

11        A.   Yes.

12        Q.   And does this statement accurately reflect what you said when you

13     were interviewed?

14        A.   Yes.  Everything is correct.

15        Q.   And so if you were asked the same questions today, would you

16     provide the same answers?

17        A.   Yes, I would give the same answers.

18        Q.   Thank you, ma'am.

19             MS. GOPALAN:  Your Honours, I seek to tender the witness's

20     statement into evidence, under seal, please.  It's 65 ter 03040.  And I

21     also have an unredacted -- sorry.  A redacted version to be tendered.

22     And that is 03040.1.

23             JUDGE MOLOTO:  Okay, let's deal with the first 65 ter number

24     first.

25             65 ter 03040 is tendered into evidence.  May it please be given


Page 1368

 1     an exhibit number.  Under seal.

 2             THE REGISTRAR:  Your Honours, 65 ter 3040 shall assigned

 3     Exhibit P304, under seal.

 4             JUDGE MOLOTO:  Thank you so much.

 5             And the next one was ...?

 6             MS. GOPALAN:  03040.1.

 7             JUDGE MOLOTO:  Oh, 40.1.

 8             MS. GOPALAN:  Yes.

 9             JUDGE MOLOTO:  That's admitted into evidence may it please be

10     given an exhibit number.

11             THE REGISTRAR:  Your Honour, 65 ter 0304.1 shall be assigned

12     Exhibit P305.  Thank you.

13             JUDGE MOLOTO:  Thank you.

14             MS. GOPALAN:  With Your Honours leave, I would like to read a

15     summary of the witness's evidence.

16             JUDGE MOLOTO:  You may, ma'am.

17             MS. GOPALAN:  Witness 76 describes the circumstances of the

18     abduction and mistreatment of one of her family members in early 1998 at

19     the hands of the KLA.

20             The witness states that sometime in the beginning of the war in

21     1998 a family member was abducted and taken to a prison in Jabllanice

22     which was run by the KLA.  The witness believes the reason for this was

23     because Lahi Brahimaj thought this family member was a spy for the Serbs.

24             The witness's family member was detained in Jabllanice for two

25     months.  The witness visited the family member at the prison in

Page 1369

 1     Jabllanice once every three weeks.

 2             The witness needed a travel permit from the KLA of the witness's

 3     village to travel to Jabllanice.

 4             The witness describes the prison in Jabllanice as being on the

 5     right side of the road on the way to Gjakove after the mosque.  The

 6     prison compound had a wooden gate.  The witness was not allowed to enter

 7     the prison compound but had to wait for the guards to take the family

 8     member out of the compound.  The witness's family member was beaten badly

 9     while in the prison.

10             After the family member was released from Jabllanice prison, he

11     told the witness that there were other prisoners who were held there.  He

12     said that the guards would put him and other prisoners somewhere with

13     water up to the waist.  He told the witness that he could hear the

14     screams of other detainees while being beaten.

15             According to the witness, Lahi Brahimaj was in charge of

16     Jabllanice, including the prison.  The witness saw Lahi Brahimaj once

17     very close to the prison, when visiting the family member.

18             The witness's family member disappeared after the war and the

19     witness has not seen him since.

20             Your Honours, that's the end of my summary.

21             JUDGE MOLOTO:  Thank you, madam.

22             MS. GOPALAN:  Your Honours, with your permission, I would like to

23     show the witness a photograph.  And if we could go to private session for

24     that, please.

25             JUDGE MOLOTO:  May the Chamber please move into private session.


Page 1370

 1                           [Private session]

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1371











11 Pages 1371-1377 redacted. Private session.
















Page 1378

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

14     you.

15             JUDGE MOLOTO:  Thank you so much.

16             MR. HARVEY:

17       Q. Witness, (redacted) who disappeared, you went to Jabllanice in order

18     to see him; is that correct?

19        A.   Yes.

20        Q.   And --

21        A.   After he disappeared, you mean?

22        Q.   No, I don't mean after he disappeared.

23        A.   Yes, yes.

24        Q.   This was some time around the beginning of the war in 1998; is

25     that correct?

Page 1379

 1        A.   Yes, yes.  It's correct.

 2        Q.   Do you recall whether that would have been around May of 1998?

 3        A.   To tell you the truth, I don't know, because there are so many

 4     things that happened.

 5       Q. When you first went to see (redacted) who disappeared, did you go on

 6     your own, or did you with (redacted)?  And please don't tell

 7     us his name.

 8        A.   (redacted).

 9        Q.   And (redacted) also joined the KLA, didn't he?

10        A.   At the time, yes.

11        Q.   At which time?  In 1998, yes?

12        A.   1999, yes.

13        Q.   Well, do you remember whether it was 1998 or 1999, Witness?

14        A.   I don't know.  It was when we went towards -- for Albania.  We

15     left for Albania.  It was then.  You mean (redacted)

16     (redacted)?

17             MR. HARVEY:  I think we better go into private session for a

18     moment so we can clarify that, please.

19             JUDGE MOLOTO:  Thank you very much.

20             May the Chamber please move into private session.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1380











11 Page 1380 redacted. Private session.















Page 1381

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

 9     you.

10             JUDGE MOLOTO:  Thank you so much.

11             Yes, Mr. Harvey.

12             MR. HARVEY:

13        Q.   Who told you, Witness, that there was a place -- well, let me

14     rephrase this.

15   (redacted)

16   (redacted)

17   (redacted)

18             MR. HARVEY:  And I think we better go into closed session,

19     private session.

20             MS. GOPALAN:  Private session.  Yes, that is what I was about to

21     say, Your Honours.

22             JUDGE MOLOTO:  May the Chamber please move into private session.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 1382











11 Page 1382 redacted. Private session.















Page 1383

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

 4     you.

 5             JUDGE MOLOTO:  Thank you, Mr. Registrar.

 6             Yes, Mr. Harvey.

 7             MR. HARVEY:

 8        Q.   And, Witness, you have said that you went to Jabllanice, you

 9     think, perhaps four or five times.  It's hard for you to remember; that's

10     correct?

11        A.   That's correct.  I went there when he was detained.  But when he

12     went to the war, to the front, I didn't go there.  He came to see me.

13     Because then he was free.

14        Q.   And you were supporting the KLA yourself, weren't you, during the

15     war?

16        A.   Yes.

17        Q.   You made money by baking bread for the KLA, didn't you?

18        A.   Yes.

19        Q.   And Lahi Brahimaj came to your house to give you flour, to bake,

20     didn't he?

21        A.   Yes.  He came often.

22        Q.   You say he came often.  How many times do you say he came?

23   (redacted)

24             MR. HARVEY:  Sorry, we have another redaction, unfortunately.

25             MS. GOPALAN:  Your Honours, may I suggest that this witness's


Page 1384

 1     testimony is dealt with in private session.

 2             JUDGE MOLOTO:  Yes, Madam Gopalan.  The Trial Chamber must try to

 3     strike a balance between having a public hearing and preserving the

 4     rights and security of witnesses.  So we can't just sort of make a

 5     blanket order.  We've got to try and find a happy mean.

 6             MR. HARVEY:

 7        Q.   Witness, may I --

 8             JUDGE MOLOTO:  May --

 9             MR. HARVEY:  Please, Your Honour.  Yeah.

10             JUDGE MOLOTO:  Shall we go back into private session.  Or do you

11     just want to redact.  Is that all?

12             MR. HARVEY:  I just want to redact that.

13        Q.   And say to the Witness, please, ma'am, do your best not to

14     mention any individual names.  Because you have protected witness status

15     and by mentioning names, that may violate your status.  I see you nodding

16     your head.  I know you understand.  Of course, it's difficult, we will

17     both try to avoid this happening again.

18             MS. GOPALAN:  Your Honours, if I may, the witness, I think, has

19     difficulty understanding the distinction and being able to actively make

20     the distinction each time she is asked a question.  And this is

21     particularly acute in relation to her family members, and I think the

22     compromise between the open hearing and -- and being in closed session

23     would be when the witness speaks about her family members which relate to

24     her identity, then I would suggest to Your Honours that that be heard in

25     private session so we do not have any further slip-ups.

Page 1385

 1             JUDGE MOLOTO:  When you say she has difficulty making a

 2     distinction do you mean -- a distinction between whether we are in or out

 3     of private session.

 4             MS. GOPALAN:  That.  And also in terms of the information that

 5     would identify her family members.

 6             MR. HARVEY:  Your Honours, I don't think it's appropriate for

 7     Prosecution counsel to act as mind readers in court for the witness.  I

 8     will make more clear, with each question to the witness, whether I am

 9     asking her a question in open session or in private session, and I think

10     that is appropriate.  But if we restrict the entire proceedings to only

11     mentioning -- only being in private session when speaking about a member

12     of her family then, of course, the entire proceedings will be in private.

13             So I will work harder and further with this witness to make sure

14     that we can have as much of this in public as possible, because that is

15     in the public interest and in the Tribunal's interest.

16             JUDGE MOLOTO:  May I further suggest to you, Mr. Harvey, because

17     you can read on the screen whether we are in private session or open

18     session, so in addition to saying to the witness, We are in private

19     session, say to the witness as you ask the question, Please, in your

20     answer don't give me the name or, if -- if there's any identifying

21     feature just say, Don't --

22             If you go on button that says "video" you will be able to see

23     whether we are in or out of private session.  There will be a "PS" when

24     we are in private session, "CS" when we are in closed session.

25             I see you trying to look for that.

Page 1386

 1             MR. HARVEY:  I have a very fine view of myself and yourself on

 2     the video, but I'm not seeing the transcript.

 3             JUDGE MOLOTO:  Because we are in open session.  That's why you

 4     don't have a "PS" there.  But it will come up in red when we are.  Over

 5     that ICTY logo.

 6             MR. HARVEY:  I follow you.  I'll arrange the rest of my screens

 7     accordingly.

 8             Unfortunately, my other screen does not show anything, since page

 9     17, line 4, of this morning.  So I'm not getting any help from that at

10     all.

11             JUDGE MOLOTO:  Not on that screen where you are looking at the

12     transcript.  On the other screen.  Where you look at your exhibits.

13             Mr. Registrar, we are redacting that little thing?

14                           [Trial Chamber confers]

15             MR. HARVEY:  My other screen has now unfrozen, thanks to

16     Mr. Mair's kind assistance.  So let's proceed as we can here.  Thank you.

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

18             MR. HARVEY:

19        Q.   So we are now, I believe --

20             JUDGE MOLOTO:  We are at the time where you asked a question and

21     the witness (redacted) who disappeared and you asked for a

22     redaction and then this whole little discussion came about.

23             So if can you remember the question you had asked at that time.

24             MR. HARVEY:  Just waiting for... okay.

25        Q.   Witness, I believe we are -- yes.

Page 1387

 1             MR. HARVEY:  May we now go into open session, please.

 2             JUDGE MOLOTO:  May the Chamber please move into open session.

 3             You were talking at the time when Mr. Brahimaj was bringing lots

 4     of flour.

 5             We are in open session?  Okay.  Thank you very much, Mr. Harvey.

 6             MR. HARVEY:  Thank you.

 7        Q.   Witness, you said that Lahi Brahimaj came to bring you flour.

 8     Did over people with the name of Brahimaj also come to your house on a

 9     number of occasions?

10        A.   Yes.

11        Q.   Do you remember who else came?

12        A.   Yes.  I remember, but he is dead now, and I find it difficult to

13     mention him by name.

14        Q.   Well, I don't need to trouble you with that further.

15             Your evidence is that (redacted) who joined the KLA was

16     wounded at one stage; is that correct?

17        A.   Yes, yes.

18        Q.   And do you remember how long he had been gone from your home by

19     the time he was wounded?  Was it a matter of two months, three months,

20     one month?

21        A.   I don't know.  He was at war.  I couldn't count the days.

22        Q.   And when he was wounded, he was taken good care of by the KLA,

23     was he not?

24        A.   Yes.

25        Q.   Do you remember where he was treated?

Page 1388

 1        A.   In Jabllanice.

 2        Q.   And in what kind of a place was he treated there?

 3        A.   He was given the first aid in Irzniq, and then he stayed in

 4     Jabllanice.

 5        Q.   So in Irzniq, there was a hospital of some sort; is that correct?

 6        A.   Yes.  This was what I was told.  I wasn't there myself.

 7        Q.   Did you go to Jabllanice to see him while he was recovering

 8     there?

 9        A.   They informed me that he was wounded, and I went to visit him.

10        Q.   And the place that you visited him in was not a hospital, was it?

11        A.   It was a room.

12        Q.   A room in someone's house; yes?

13        A.   Yes.

14        Q.   I ask you this, Witness, because in the statement which you gave

15     to the Prosecution, it says in that statement that there was a hospital

16     in Jabllanice where you visited him.  But that's not correct, is it?

17             MR. HARVEY:  Looking at paragraph 16, Your Honours.

18        Q.   That's right, isn't it?  There wasn't a hospital in Jabllanice,

19     was there?

20        A.   The wounded stayed there.  But they took out the bullet in

21     Irzniq.

22   (redacted)

23             MR. HARVEY:  I'm so sorry.  Could we have a redaction, please.

24             JUDGE MOLOTO:  Yes, Madam Gopalan.

25             MS. GOPALAN:  Your Honours, would it be possible to proceed in

Page 1389

 1     private session when we speak about family members, and, at the end of

 2     the witness's evidence, we review the whole transcript and make

 3     appropriate redactions so that it may be then opened up to the public.

 4             MR. HARVEY:  Your Honours, I certainly oppose that course of

 5     action.  I do apologise for that last slip of the tongue.

 6             JUDGE MOLOTO:  Sure.  And my problem, Madam Gopalan, is that it

 7     does as seem as the entire testimony the entire cross-examination is on

 8     family members.  And otherwise it means that the entire testimony is

 9     going to be in private session.

10             MS. GOPALAN:  But only temporarily, Your Honours.  Once a review

11     is done, appropriate portions can then be released to the public.  If

12     that is not done, we -- we see that on a number of occasions there have

13     been slip-ups that require redactions and I think the safer course of

14     action would be for it to be heard in private session and the concern

15     that you had about the open trial could be dealt with later on.  Because,

16     in any event, if the material is confidential, it will have to be heard

17     in private session anyway.

18             MR. HARVEY:  Your Honours, Ms. Gopalan clearly completely

19     misperceives half of the purpose of having open sessions.  This trial is

20     followed day and daily on television in Kosovo.  This witness herself has

21     watched this trial on television in Kosovo.  The primary means for the

22     people in the country that are most affected by the testimony that is

23     being given, the primary means for them to know what is being said about

24     these three accused and about their country is by public session, on

25     television, not by reading transcripts that may be redacted or

Page 1390

 1     de-redacted at a later stage.

 2             And so the suggestion that we do this entire thing in private and

 3     then go back and open up the transcript at some later stage does not meet

 4     the concerns of a public trial in my submission.

 5             MS. GOPALAN:  Your Honours --

 6             JUDGE MOLOTO:  May I suggest to you, Madam Gopalan and to

 7     everybody, when your opposite member is speaking, please, to take your

 8     seat.  We don't have a jury; we've got a different ethic here.

 9             Are you done?

10             You wanted to say something, Madam Gopalan.

11             MS. GOPALAN:  Yes, Your Honours.  I wanted to add that is

12     precisely because of the reasons that Mr. Harvey identified, that the

13     trial is being followed closely that we need to be acutely aware of any

14     security concerns and the need to protect the witness.  The fact that it

15     is being followed so closely is actually a point in favour of dealing

16     with this in private session because the ultimate remedy is still

17     available, that it is available openly but only at a later stage when we

18     are certain that no security concerns have been breached.

19             JUDGE MOLOTO:  But, Madam Gopalan, there is a 30-minute delay in

20     the beaming of the transcript -- the -- what is the English word?

21     Broadcasting of proceedings here, isn't there?  There is a 30-minute

22     delay in the broadcast so if we pick up that mistake immediately and

23     redact it, by the time this is broadcast, that problem has been solved.

24             MS. GOPALAN:  Your Honours, I was wondering about the individuals

25     sitting in the public gallery.


Page 1391

 1             JUDGE MOLOTO:  Well, we cannot help those.

 2                           [Trial Chamber confers]

 3             JUDGE MOLOTO:  May the Chamber please move into private session.

 4                           [Private session]

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1392











11 Pages 1392-1394 redacted. Private session.
















Page 1395

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

16             JUDGE MOLOTO:  Thank you very much.

17             You may proceed, Mr. Guy-Smith.

18             MR. GUY-SMITH:  Thank you very much.

19             I note we're almost close to a break as well, and I -- perhaps,

20     we can formulate more cogent responses and come back at that time and

21     discuss this more fully.

22             The issue that is presently at hand that we have been discussing

23     is the question of whether or not we're going to be in private or public

24     session and the importance of the concerns that exist with regard to

25     having a public trial as well as concerns that exist in terms of the


Page 1396

 1     issue of the protection of certain witnesses.  And I think this is a

 2     point that is of great moment to all of us and something that I

 3     appreciate that the Chamber is fully not uncognisant of but is troubled

 4     by - and I don't mean troubled by in the sense of anything other than

 5     it's something of importance to us all with regard to the idea that these

 6     trials should be fully apparent, fully open, and fully available to the

 7     public with all of the rights of the accused being taken into account as

 8     well as the rights of the victim.

 9             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

10             You -- yes ma'am.

11             MS. GOPALAN:  I would just like to add in response to Mr. Harvey

12     and Mr. Gregor Guy-Smith, the Prosecution maintains its position that it

13     has stated earlier on, and we are mindful of the particular security

14     concerns that this witness has, that the Chamber is alerted to, and

15     that's the basis for our position.  And my understanding, Your Honours,

16     was in any event that you have already ruled.  But if you're minded to

17     reconsider, this is our position.

18             JUDGE MOLOTO:  Thank you very much, Madam Gopalan.

19             Mr. Harvey did ask that we reconsider.  And Mr. Guy-Smith

20     suggested that we take a break and come back.  So the debate is not

21     closed.

22             So may we take a break and come back at half past 12.00.

23             But before we do that, may we move into closed session.

24                           [Closed session]

25   (redacted)

Page 1397

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

11     you.

12             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

13             We'll take a break and come back at half past 12.00.

14             Court adjourned.

15                           --- Recess taken at 12.02 p.m.

16                           --- On resuming at 12.34 p.m.

17             JUDGE MOLOTO:  I thought it was Mr. Guy-Smith who suggested that

18     we take the break and continue when we come back, leaving the Chamber

19     with the impression that he wasn't done yet.  If he is, however, done,

20     you may stand up, Mr. Harvey.

21             I see he doesn't seem to take -- oh.

22             MR. GUY-SMITH:  I will defer to Mr. Harvey.  I -- I remain

23     terribly concerned about the issue of public trials but based on the

24     representations made by Mr. Harvey, I'll defer to him since he's in the

25     driver's seat right now.

Page 1398

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

 2             Mr. Harvey.

 3             MR. HARVEY:  Your Honours, I think I may be able to assist

 4     everybody if I indicate that that break has given me an opportunity to

 5     reconsider the approach that I was originally planning to take with this

 6     witness.  And, as a result of that, there -- I have been able to identify

 7     a number of issues which do not refer to any family members, and which I

 8     can therefore deal with perfectly competently and happily in open

 9     session.  And as soon as I come to any issue of -- any of the few

10     remaining areas concerning familiar members, I will ask to go into

11     private session.

12             JUDGE MOLOTO:  The Chamber is very grateful to you for that,

13     Mr. Harvey.

14             And at some stage, when we don't have a witness on the stage, the

15     Chamber would like, by way of housekeeping, to have a discussion with the

16     parties on this issue because there are other factors that have been

17     brought to the attention of the Chamber by the Court Officers and CMSS

18     which the Chamber would like to share with the parties.

19             MR. HARVEY:  We remain in your hands, of course.

20             JUDGE MOLOTO:  Thank you so much.

21             We are in open session.  May the Chamber please move into closed

22     session.

23                           [Closed session]

24   (redacted)

25   (redacted)

Page 1399

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

20             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

21     you.

22             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

23             Yes, Mr. Harvey.

24             MR. HARVEY:  Thank you, Your Honours.

25        Q.   Madam Witness, just one matter from before the break.  You said


Page 1400

 1     that Lahi had brought flour and other matters.  It was, in fact, common

 2     practice, wasn't it, by the KLA, during the war that they would bring

 3     flour, oil, and other food they would distribute to the families of KLA

 4     soldiers?

 5        A.  Yes. (redacted) was -- took part in the war, and nobody else could

 6     bring me those things.

 7        Q.   And the KLA provided that kind of assistance to many families,

 8     particularly poor families, who couldn't afford these things for

 9     themselves.

10        A.   Yes.

11        Q.   Thank you.  I'd like to ask you some questions now about how you

12     came to make your statement - are you okay with those headphones?  Yes? -

13     about --

14        A.   Yes, yes, okay.

15        Q.   -- how you came to make your statement in September of 2010.

16             Do you recall how you got to the EULEX headquarters at Camp Bravo

17     when you were -- went to make your statement?

18        A.   Yes, I did go there.

19        Q.   How did you get there?

20        A.   By bus.

21        Q.   And who contacted you to tell you where you had to go?

22        A.   I went there by myself.  I couldn't find the place, and then I

23     had to ask people, and then I went to EULEX.

24        Q.   And had anybody contacted you before you went to EULEX or did you

25     go without anyone asking you to?

Page 1401

 1        A.   I also went to our police station.  I went to EULEX in Gjakove.

 2     I went everywhere.  Nobody paid attention to me.  And that's why I went

 3     to EULEX.

 4        Q.   And was that for the first time you did that in September of

 5     2010?

 6        A.   I think so.

 7        Q.   And did they take a statement from you all in the one day?  Or

 8     did they tell you to come back another day?  How was that done?

 9        A.   I think it was within one day; however, I'm not sure about it.

10        Q.   Had you heard information somewhere, on the television, or radio,

11     or somehow, that EULEX were looking for people to give them information?

12        A.   I knew it by myself.

13        Q.   And what did you hope to achieve by giving them a statement?

14        A.   I went there to find out about (redacted).

15        Q.   Very well.  Let me just ask you this:  Do you go with this as a

16     general statement, madam, that during a war, there is propaganda on all

17     sides?

18             Do you understand what I mean by "propaganda"?

19        A.   Yes.  Yes, I understand.

20        Q.   And do you agree that, during a war, there is propaganda made by

21     all sides involved?

22        A.   Yes.

23        Q.   And that, during a war, you hear all kinds of rumours that are

24     spread?  I --

25             I'm sorry, I'm not sure if you answered my question or not.


Page 1402

 1             Do you agree that all kinds of rumours get [Microphone not

 2     activated]?

 3        A.   What answer can I give?

 4        Q.   Well, you can answer this.  Did you hear all sorts of rumours

 5     during the war?

 6        A.   About whom?

 7        Q.   Did you hear rumours, for instance, about Jabllanice?

 8        A.   No, I didn't.  I was not interested to listen to those things

 9     during the war.

10        Q.   Did you hear -- let me rephrase that.

11             MR. HARVEY:  Can we go into private session for a moment, please.

12             JUDGE MOLOTO:  May the Chamber please move into private session.

13                           [Private session]

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16                           [Open session]

17             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

18     you.

19             JUDGE MOLOTO:  Thank you so much.

20             The matter stands adjourn till 9.00 tomorrow morning, same

21     courtroom.

22             Court adjourned.

23                           --- Whereupon the hearing adjourned at 1.50 p.m.,

24                           to be reconvened on Thursday, the 29th day of

25                           September, 2011, at 9.00 a.m.