1 Friday, 30 January 2009
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.33 p.m.
6 JUDGE AGIUS: So good afternoon, everybody. Good afternoon to
7 you, Madam Registrar. Could you call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-02-54-R77.5-PT, the case against Florence Hartmann.
10 JUDGE AGIUS: Okay, thank you.
11 Shall we start with representations. Mr. MacFarlane.
12 MR. MacFARLANE: Thank you, Your Honours. I appear on behalf of
13 the Prosecution --
14 THE REGISTRAR: Your microphone.
15 JUDGE AGIUS: Microphone.
16 MR. MacFARLANE: Thank you, Your Honours. I appear on behalf of
17 the Prosecution this afternoon and with me is Lori Ann Wanlin, also of
19 JUDGE AGIUS: Thank you.
20 Mr. Khan.
21 MR. KHAN: If it please Your Honours, Mr. President, good
22 afternoon. My name is Karim Khan. I appear for Florence Hartmann along
23 with co-counsel Guenal Mettraux and our legal assistant Arina Koligina.
24 JUDGE AGIUS: Thank you, Mr. Khan and Mr. Mettraux. You are most
25 welcomed. It's the first time you are appearing in this case, and,
1 therefore, it's my duty to welcome you as well as your legal assistant,
2 of course.
3 Good afternoon, everybody. The reason why we decided to be, the
4 three of us here, present for this Status Conference is that the trial is
5 practically round the corner. It's a matter of days. So there is no
6 point in having just me presiding over the Status Conference, then going
7 back to my colleagues and possibly having to come back to you, so we
8 decided to proceed this way.
9 This is the first Status Conference of its kind in this case, and
10 just for formality's sake but also for public consumption, I just wish to
11 underline that such Status Conferences are held pursuant to
12 Rule 65 bis (a) of the rules, and the purpose of a Status Conference is
13 to organise exchanges between the parties so as to ensure an expeditious
14 preparation for trial; and, secondly, to review the status of the case
15 and to give an opportunity to the accused to raise issues, including
16 personal issues like physical condition and health -- health matters,
17 which I hope do not exist in this case where an accused is not in
19 In preparation for the trial, you will recall that on the 8th of
20 January of this year, the Amicus Prosecutor - and I will be referring to
21 him henceforth as the Prosecutor - filed his pre-trial brief; and seven
22 days later on the 15th of January, the Defence filed theirs. As you are
23 aware, trial is scheduled for next week, namely, the 5th and the 6th of
24 February, with a Pre-Trial Conference to precede immediately the
25 commencement of the trial.
1 Since we last met and until basically yesterday, we have had a
2 long series of motions, most of which have been decided. In particular,
3 I'm referring to the more recent ones. I don't know if you wish --
4 perhaps want to give an indication to the Trial Chamber of what your
5 intentions are, Mr. Khan? I'm talking of the ones that have already been
7 MR. KHAN: Your Honour, it's our intention to seek certification
8 under Rule 73 for leave to appeal.
9 JUDGE AGIUS: Okay, thank you. That is what we expected, in any
10 case, but we'll come to that matter in due course, about certification.
11 There are three outstanding motions which we will be dealing very
12 briefly with. I'll tell you beforehand what our approach is going to be.
13 These three motions are going to be decided orally today. One of them
14 will give you a very short oral reasoning and that will be it, and then,
15 of course, you can seek certification later. The other two will be
16 decided orally today with written reasons to follow at the earliest, and
17 that means very early in the coming week. So let me go through them one
18 by one.
19 The first one is a Prosecution motion to amend its 65 ter list.
20 This was filed, as you will recall, on the 20th of January, 2009. Now,
21 it hasn't been decided, but if you've read carefully yesterday's decision
22 regarding your motion on the taking and disclosing of proposed witness
23 statements, you would have noticed that in a somewhat unorthodox and
24 direct fashion, we did make it clear what our position would be.
25 However, things being what they are, that is, that it has not yet been
1 formally decided, and since, Mr. Khan, you have not yet responded to this
2 motion which now shouldn't present any particular difficulties, I would
3 like you to tell us if you wish to respond orally to it now so that we
4 can proceed with our decision.
5 MR. KHAN: Your Honours, I'm most grateful for the kind
6 invitation. Your Honours can proceed to render your judgement.
7 JUDGE AGIUS: Thank you, and thank you for being practical,
8 Mr. Khan. This is usually much appreciated by the Trial Chamber.
9 We, yesterday, stated in paragraph 9, if I recall well, of our
10 decision the following:
11 "Finally, on the 20th of January, 2009, the amicus filed the
12 Prosecution motion to amend Rule 65 ter witness and exhibit lists,
13 wherein the amicus clarified that he intends to reduce the scope of the
14 expected testimony of Mr. Ruxton. The Trial Chamber is satisfied that
15 the clarification made by the amicus in this motion meets the concerns of
16 the Defence as raised in its addendum and adequately puts the Defence on
17 notice of Mr. Ruxton's expected testimony."
18 Now, on the basis of that, we believe that there is no reason why
19 the Prosecution motion to amend its 65 ter list should not be accepted,
20 and more or less for the same reasons we are granting the motion. And if
21 you will seek certification, we will tell you what the procedure is going
22 to be later on.
23 The next Defence motion is a much more substantial motion, and
24 it's only yesterday that we received the response from the Prosecutor,
25 and we have been working intensively on it. Beyond that, we have also
1 met, made our considerations after long deliberations. We just finished,
2 actually, a short while ago, and we have come to a conclusion to deny the
3 motion. We will be following with a written decision in the course of
4 next week, Monday or Tuesday, and you will know the basis for our
5 decision and on which you can then base your request for certification,
6 if you still intend to proceed that way.
7 The third one is an urgent Defence motion for the issuance of a
8 subpoena to amicus curiae Prosecutor, Mr. Bruce MacFarlane, pursuant to
9 Rule 54. You are definitely aware, Defence certainly even more than
10 Prosecutor, that this motion was predicated on a situation assuming that
11 the decisions that we handed down up to yesterday were not handed -- were
12 not decided as yet, were not taken as yet. They have now been taken. In
13 other words, you had made it clear that you would have preferred to
14 interview Mr. MacFarlane prior to the taking of that decision, of those
16 In light of the fact that Mr. MacFarlane indicated that he would
17 only consider your request to be allowed to be interviewed after that
18 certain motions had been decided, we considered that. Now, the motion
19 itself for the subpoena to be issued to the amicus curiae can be decided
20 today, and we are denying the motion, and reasons will follow in the
21 coming week, either Monday or Tuesday.
22 On the assumption that everything goes smoothly, and according to
23 the law, the intention is to start the trial as scheduled on Thursday of
24 next week. Like every other trial, I would have expected, and I am sure
25 it did happen, the usual -- for the usual exchanges between the parties
1 to have taken place and also been mutually concluded to mutual
2 satisfaction. I understand that in the course of these exchanges there
3 may have been some problems. If these problems are still existing, then
4 I would like you to speak out now. If they have all been sorted out,
5 then perhaps you can enter a declaration to that effect for the record.
6 I think I will start with you, Mr. Khan. Do you still have any
7 outstanding problem with Mr. MacFarlane?
8 MR. KHAN: Well, with Mr. MacFarlane personally, no, not at all.
9 I don't know him. I haven't had the pleasure. As far as his
10 investigation is concerned and the material that has been provided to the
11 Defence, we have very significant and grave misgivings about our ability
12 to do the job that we are entrusted to do, which is to properly represent
13 our client.
14 Your Honours, you have ruled just now on the issue of the
15 subpoena, but there were a number of other matters that have yet to be
16 decided. My learned friend provided us with a list of suggested agreed
17 facts. We gave our response sometime ago, more than a week, anyway. In
18 addition, I received an e-mail only today from my learned friend which
19 was in response to some further suggested agreed facts proposed by the
20 Defence, and in that e-mail - he will correct me if I'm wrong - he states
21 that they seem at first blush to be potentially agreeable, but he wants
22 time to consider them. So, Your Honour, those are matters which are yet
23 to be decided between the parties.
24 We have also asked for evidence regarding the provenance of
25 certain documents regarding the chain of custody. The position of my
1 learned friends up to this point has been to deny that. He has not
2 provided us information as to the provenance of certain documents.
3 Now, Your Honours, one of the very real difficulties that we
4 face, and this was the focus of our subpoena motion, is that my learned
5 friend wears two hats. He appears robed today in court, but in a
6 previous incarnation, he had the privilege of being appointed the amicus
7 investigator, and the only way we as a Defence team can look at the skull
8 beneath the skin, the only way we can pierce the process of this
9 investigation, is to ask the investigating officer, who is sitting
10 opposite me, certain questions. Your Honours, we have nobody else to ask
11 regarding the provenance of documents. We have nobody else to speak to
12 regarding the conduct of investigations.
13 So these were some of the serious misgivings that I raise for the
14 record. Of course, in due course we will seek certification for leave to
15 appeal on a raft of motions that Your Honours have graciously decided.
16 But, Your Honours, these are matters which give the Defence serious cause
17 for concern about the fairness of this process.
18 Your Honour, there is, of course, a fundamental difference
19 between the Defence and the Prosecution. It is our respectful submission
20 that in order to arrive at a satisfactory conclusion, a just result, one
21 must -- and Your Honours, alive to your oaths and Rule 13, with all the
22 wealth of experience you bring, will want to pay close regard to the
23 process itself. It can't be glossed over. Due process has a hallowed
24 place in international law and in domestic law --
25 JUDGE AGIUS: Let's not discuss matters that are pleasures yet to
1 come, so to say. But for the time being, I ask you to limit yourself to
2 whether the exchanges that one would have expected to have been concluded
3 by now, would the Prosecutor have been concluded or not. I understand
4 that some of them are pending, and I will intervene as soon as you finish
5 stating other matters, other possible pending issues.
6 MR. KHAN: Well, Your Honour, my learned friend has responded on
7 time to our requests. I think we have tried to respond on time to his.
8 There is communication, of course. Neither party often gets everything
9 it wants. Sometimes they do, but not always.
10 JUDGE AGIUS: All right. And the other thing I wanted to
11 mention, Mr. Khan, is that previously you would have certainly noticed
12 that prior to deciding the last of the three motions, namely, the
13 subpoena one, I did point out that Mr. MacFarlane had never refused
14 outright your request but said that he would consider the issue after the
15 motions he refers to had been decided. So I would suggest that you try
16 to approach Mr. MacFarlane, and maybe he wishes to address the Trial
17 Chamber on this and also any outstanding matters with the Defence now.
18 Yes, Mr. Khan.
19 MR. KHAN: Your Honour, I'm grateful, and we will definitely take
20 Your Honour up on that advice.
21 JUDGE AGIUS: Thank you.
22 Ms. Hartmann, are you comfortable there, or do you wish to come
23 further forward? Because you're still far away from counsel.
24 THE ACCUSED: It's okay, thank you.
25 JUDGE AGIUS: Okay, thank you.
1 Mr. MacFarlane.
2 MR. MacFARLANE: Thank you, Your Honours.
3 There has been, as is to be expected in a case of this sort, a
4 number of exchanges back and forth. There have been areas of agreement
5 and areas of disagreement. With respect to the question of admissions or
6 identifying areas that are not in issue, I, on behalf of the Prosecution,
7 forwarded a list of areas. My learned friend considered them carefully
8 and returned a list of agreed areas, and for that I'm very grateful to
9 him. So we have been able to narrow the issues down in terms of points
10 that I thought were not in issue.
11 My learned friend forwarded to me, I believe it was yesterday or
12 the day before, a list of areas that he thought could be the subject of
13 similar admissions. I hadn't seen a list or a description of areas that
14 he was seeking agreement on, and as he quite accurately pointed out, at
15 first blush I think that some of them can be the subject of admissions.
16 Some of them I need a little bit of time, and I've indicated to him that
17 I would get back to him on Monday. I need the weekend to consider that
19 JUDGE AGIUS: Okay. All right. Thank you, Mr. MacFarlane. I
20 think you will perhaps also discuss with Mr. Khan your availability or
21 otherwise in relation to the information that he's -- other information
22 he's trying to seek from you --
23 MR. MacFARLANE: Yes.
24 JUDGE AGIUS: -- by way of a subpoena or in some other fashion.
25 MR. MacFARLANE: Well, he also raised the question today about
1 what he referred to as chain of custody and provenance on some documents.
2 Some of those documents are not going to be relied upon by the
3 Prosecution, so I've questioned the relevance of chain of custody and
4 provenance where I'm not seeking to any longer rely upon those, and so
5 that's an area of discussion and perhaps disagreement; and some of the
6 other documents for which he was seeking chain of custody or provenance
7 were attached to the Registrar's initial initiating documents to the
8 Chamber, so that's an area of discussion as well.
9 Insofar as the question of an interview, it seemed to me that
10 before I could properly respond to my learned friend on that question, I
11 needed to have an understanding of the issues that the Chamber felt were
12 properly before the Tribunal, before the Chamber, and that is the reason
13 why I suggested that we await the decisions. All of those decisions have
14 now been delivered, with reasons to follow.
15 I think it's safe to say that the request to interview and to
16 potentially call the opposing counsel is quite extraordinary.
17 JUDGE AGIUS: Keep them distinct, please. To interview is one
18 thing; to call is another.
19 MR. MacFARLANE: Yes, thank you. The short answer to the
20 question from the Chamber is that, having regard to the decisions that
21 have been made by the Chamber, I would like to consider the matter and
22 will undertake to get back to my learned friend on Monday, on his
24 JUDGE AGIUS: Monday, or Tuesday, when we hand down the written
25 decision on the matter.
1 MR. MacFARLANE: Yes. It would be beneficial to have the
3 JUDGE AGIUS: Yes, thank you. Yes, I understand that.
4 En passant when you were discussing this matter, you mentioned
5 something that I meant to raise in due course myself, namely, the
6 question of agreed facts. It would be helpful for the Trial Chamber if
7 we know exactly what these agreed facts are before we start -- before we
8 start the trial because we, too, have to prepare. Thank you.
9 Mr. MacFarlane and Mr. Khan, in the past weeks we read very
10 carefully - Judge Moloto, obviously only in the last few days; he had to
11 cope with the several hundreds of pages that we had already gone through,
12 and I'm grateful for him having caught up so efficiently with us - we
13 have gone through all the documentation, all the motions, and of course
14 given them our utmost attention. One of the things that we had in mind
15 mentioning today and which you have indirectly prompted, Mr. MacFarlane,
16 by what you said a few minutes ago is the following: A few minutes ago
17 you said:
18 "Insofar as the question of the interview, it seems to me that
19 before I could properly respond to my learned friend on that question, I
20 needed to have an understanding of the issues that the Chamber felt were
21 properly before the Tribunal, before the Chamber."
22 We believe that the issues have been made clear, first, by our
23 order in lieu of the indictment and, secondly, also by our decisions so
24 far that relate to the matter. However, I have a question for both of
25 you in preparation of the trial, and this is whether you have considered
1 that the reference to the contents of the underlying protected documents,
2 whether you have considered the reference to the contents of the
3 underlying protected documents to be excluded from what is formulated in
4 the form of a charge and the order in lieu of the indictment. And I am
5 asking you this because this may not necessarily coincide with the Trial
6 Chamber's understanding of it.
7 MR. KHAN: Well, Your Honour, I must confess. I don't fully
8 understand the question. Perhaps I would be enlightened if I could have
9 the Trial Chamber's understanding, and perhaps I could then either accept
10 it or make submissions on that understanding.
11 JUDGE AGIUS: I will repeat the question. In trying to
12 understand the nature and the substance of the charges brought against
13 your client in our order in lieu of the indictment, have you considered
14 that the reference to the contents of the underlying protected documents
15 to be excluded from the formulation adopted in that order?
16 MR. KHAN: Well, Your Honours, perhaps --
17 JUDGE AGIUS: And I'm telling you this because if you do consider
18 them to be excluded, then you might also need to consider that this might
19 not coincide with the Trial Chamber's understanding of the order in lieu
20 of the indictment.
21 MR. KHAN: Your Honour, our understanding, to the best of my
22 knowledge and the best of my ability, has been detailed in our Defence
23 brief, and I can refer Your Honours to that, if that's of any assistance.
24 It's paragraph 9 of our Defence brief.
25 [Trial Chamber confers]
1 MR. KHAN: Your Honour, perhaps I can read it. It's from the
2 public version.
3 JUDGE AGIUS: Yes.
4 MR. KHAN: Paragraph 9 states:
5 "The nature of the charges of Ms. Hartmann."
6 And we wrote:
7 "Ms. Hartmann is charged with disclosing the following facts: 1,
8 the existence and date of the two impugned decisions; 2, the confidential
9 character of these decisions; 3, the identity of the moving party and
10 applicant; 4, the subject, namely the fact that protective measures were
11 granted in relation to the documents."
12 Your Honour, that was filed on the 15th of January. At the best
13 of my recollection, there's been no comment on departure from my learned
14 friend that that understanding has been incorrect.
15 JUDGE AGIUS: Mr. Khan, when I addressed this issue, I wasn't
16 directing it only to you. I was also directing it to towards
17 Mr. MacFarlane because we want to make sure -- we want to make sure
18 that -- we want to make sure that you read from the part regarding the
19 factual allegations supporting the charges contained in the order in lieu
20 of the indictment the way we read them, and you have in one paragraph:
21 "On the 10th of September, 2007, a book entitled "Paix et
22 Chatiment," authored for publication by Florence Hartmann, was published
23 by Flammarion, pages 121 to 122 of the book, in particular disclose
24 information related to the decisions of the Appeals Chamber dated ..."
25 and you have the two dates "... including the contents and purported
1 effect of these decisions, as well as to the specific reference to the
2 confidential nature of these decisions."
3 You read the following paragraph, starting with:
4 "On the 21st of January, 2008 ..."
5 Again, at the end we have a reference to the two confidential
6 decisions of the Appeals Chamber, dated, including the contents and
7 purported effect of these decisions.
8 Anyway, we are not going to say more. We felt it our duty to
9 point this matter out to you before we hopefully start the trial on
10 Thursday of next week, of the coming week.
11 MR. KHAN: Mr. President, I'm most grateful for that question. I
12 will say, because it's relevant to the due notice, fair notice aspect of
13 this case, that our stated position in our pre-trial brief on the 15th of
14 January was put verbatim by the Defence in our motion to -- for
15 reconsideration, dated the 14th of January, and that's at paragraphs 14
16 to 18, and the Prosecutor, the Amicus Prosecutor in this case took no
17 issue with it.
18 In my respectful submission, given that we have a legitimate
19 expectation that our understanding is correct, if it was not, surely
20 being the diligent and experienced prosecutor that he is, issue would
21 have been taken with it in the reply at the proper time.
22 JUDGE AGIUS: Mr. Khan, in putting the question, I didn't ask you
23 to perhaps consider whether your understanding of the charge tallies with
24 that of Mr. MacFarlane. I put the question to make sure that both of you
25 give a thought to what has been exchanged by way of motions and decisions
1 so far and submissions and make sure that your understanding of the
2 charges tally with the Trial Chamber's understanding of the charges.
3 MR. KHAN: Well, Your Honour, in my respectful submission,
4 perhaps not. Now that an Amicus Prosecutor has been appointed, what's
5 important, in my respectful submission, is the way the Prosecutor puts
6 his case so that the Trial Chamber has the distance and objectivity and
7 detachment available to decide the case.
8 JUDGE AGIUS: Okay.
9 MR. KHAN: So what's important is now the Prosecutor, how he's
10 put his case, not, with the greatest of respect, what's in the mind of
11 the Bench.
12 JUDGE AGIUS: Okay, thank you.
13 Do you wish to comment, Mr. MacFarlane?
14 MR. MacFARLANE: I think at this point --
15 JUDGE AGIUS: Microphone, and briefly, please.
16 MR. MacFARLANE: Thank you. I certainly -- the Chamber has asked
17 counsel to direct their minds to this particular point, and certainly, I
18 intend to do that and have done that. But the matter having been
19 highlighted by the Chamber, I think it's incumbent on both counsel to
20 give perhaps further attention to the issue raised. There does appear to
21 be a triangulation of issues here, that is, the order in lieu of
22 indictment, the contents of the book, and the underlying documents to the
23 extent that they're referred to in the order in lieu of indictment. So I
24 certainly intend to review the comments of the Chamber and direct my mind
25 sharply to the points that have been raised.
1 JUDGE AGIUS: Thank you.
2 Yes, Mr. Khan.
3 MR. KHAN: Your Honour, I don't want to be difficult, but whilst
4 it always behoves counsel to give the greatest respect and attention to
5 any comment emanating from the Bench, I do put my learned friend on
6 notice that any departure now at this late stage, on the eve of a
7 scheduled trial, in my respectful submission will amount to a shifting of
8 the goalposts and one that we on behalf of Ms. Hartmann will take the
9 very strongest exceptions to.
10 JUDGE AGIUS: Thank you, Mr. Khan.
11 Now, the next item on the agenda is any other matter that the
12 parties wish to raise.
13 Mr. Khan.
14 MR. KHAN: Your Honour, there is, in fact, and it unfortunately
15 focuses on the possibility of having the trial next week. I'll cut to
16 the chase. In our respectful submission, that will not be feasible. The
17 reason for that is that a number of requests are pending. We have sought
18 at the beginning of January waiver from -- immunity from New York from
19 the Secretary-General of the United Nations in relation to certain court
20 staff, both in the Prosecution and in the Registry. We have not received
21 that waiver as yet. We have also -- that's in relation to a Prosecution
22 witness that will be called by the Amicus Prosecutor, in relation to a
23 Registry member of staff, and also in relation to another Registry member
24 of staff that we say may well be critical to the understanding of this
25 case. Your Honour, that Registry member of staff was interviewed by the
1 Amicus Prosecutor and was very heavily relied upon in the submissions
2 that went before Your Honours and were relied upon when the order in lieu
3 of an indictment was issued.
4 Now, Your Honour, two issues arise. It is my instructions that
5 my client made a formal complaint against that individual while she was a
6 staff member. We have asked the Registry for disclosure of that
7 complaint because it is our position that Your Honours would not want a
8 criminal process to be used as a means of settling old scores because of
9 personal enmity that may have existed.
10 Now, Your Honours, we have addressed that to the Registrar, and
11 we were told yesterday by the Acting Registrar that we will need an order
12 of the Court. Your Honour, that is one matter that is pending, an
13 application to Your Honours that the Registrar be ordered to give us
14 information. I'm not going to belabour that point. It will be the
15 subject of a written motion.
16 JUDGE AGIUS: Yes.
17 MR. KHAN: The second is, we have sought a wave of immunity so we
18 can speak to that individual. Now, Your Honours, that person is not
19 being called by the Prosecution, it is true, but in my submission that is
20 not the end of the story.
21 Your Honours, we, of course, are operating in a unique
22 environment in which Your Honours have crafted rules and will give life
23 to those rules through the statute and international human rights
24 standards. But posing for a moment by way of analogy, in England and
25 Wales, albeit a common law system, it is quite common that any witness
1 who's name is on the back of an indictment at committal must be available
2 to the Defence. My learned friend, in my submission, has relied upon a
3 witness which was the catalyst in many respects, the foundation, even,
4 for the order in lieu of indictment being issued. We want to speak to
5 that individual, and we have performed -- we've conducted ourselves
6 properly, in our submission. We have sought waiver of that person's
7 immunity, in accordance with the applicable law.
8 Your Honour, in addition, there are a number of documents that we
9 need translating. Now, we received, I think it was yesterday or the day
10 before, some response from the CMSS
11 said that the documents we had given were too copious. Your Honours, we
12 are in -- some of them are in B/C/S. In fact, the client at the moment,
13 Ms. Hartmann, is going through them to focus on those documents which we
14 do need to tender into evidence, and when we've whittled it down to what
15 is most required, we will resubmit it to the court translation system.
16 Your Honour, so that's another matter why we say we are not going to be
17 available for trial.
18 Your Honour, in addition to the Prosecution witness, we've had
19 great cooperation from the Deputy Prosecutor, and he's tried to assist
20 us. But there are some evidential matters that we have sought, and we
21 received a letter yesterday from the Deputy Prosecutor. He has sent us
22 even e-mails over the weekend to all our responses, and we go on record
23 for thanking him for the prompt cooperation. But, Your Honours, those
24 evidential matters have not been settled as yet. We are looking for
25 information that we say is germane to the case, that is relevant to Your
1 Honours, and has to be brought to Your Honours' attention.
2 Your Honour, the final matter is the most awkward, and it's one
3 that I am actually loathe to raise, but sometimes it's counsel's duty to
4 make and unsavoury or unwelcome or unwanted submissions. Your Honours, I
5 will be filing in this case an application next week for the
6 disqualification of Your Honour, the Presiding Judge, and His Honour
7 Judge Orie. Your Honour, that is not to say that we think there is any
8 impropriety, there is anything other than the highest professional
9 standards and impartiality. You are, all three of you, judges of the
10 very highest integrity and great experience, and it's a privilege
11 appearing before all three of you.
12 However, on the facts of this case, we say that there is a real
13 apprehension of bias because the rules as they have been applied have not
14 been properly followed in the sense that contamination has taken place
15 between the Bench -- inadvertent, no doubt, but between the Bench and the
16 Amicus Prosecutor.
17 Your Honour, only yesterday we received in the filing of the
18 Amicus Prosecutor, which, incidentally, it has the unfortunate aspect,
19 again, it's ones of the problems we face in which he's giving evidence in
20 a filing. In the filing, he refers to conversations with a court
21 officer, and it's reliance upon the conversation with court officer that
22 certain things were done which are challenged by the Defence.
23 Now, Your Honour, that has at least two unfortunate consequences.
24 It puts the particular court officer assisting the Bench in the invidious
25 and unwelcome position of being a potential witness because these issues
1 are in dispute by the witness.
2 Secondly, in our respectful submission, the whole purpose of the
3 rules, when Your Honours adopt this procedure, is to ensure the
4 transparency of the process and the integrity of the Bench. In our
5 respectful submission, 77(3), the summary procedure, the power of the
6 Court itself to spontaneously investigate, is not at all apposite for
7 this case. It surely was conceived by the drafters to be confined when
8 there is contempt in facio curia, contempt in the face of the course.
9 This case quite plainly applies to ex facio curia contempt, an allegation
10 of contempt outside the face of the court.
11 But, Your Honour, where there's been no paper trail, no filings,
12 but on the basis of phone calls, authorisations given to disclose that
13 which is confidential, authorisations to speak to individuals that on
14 paper have been prohibited, very real questions arise.
15 Now, Your Honours, under Rule 15, the normal procedure would be
16 that we would file to Your Honour, as Presiding Judge, and Your Honour as
17 the Presiding Judge would consult with the Judge whose recusal is sought,
18 and it could go to the President. Your Honour, I will put this in the
19 motion, but my application would be to file to Your Honours and that Your
20 Honour pass the whole file to the President to determine this matter. If
21 there's no merit in our fear that a reasonable bystander acquainted with
22 the facts, that the origin of this came from the Registry, that there has
23 been this -- the way the amicus has been appointed and conducted himself,
24 if it's baseless, of course, it will be decided, and Your Honours will
25 remain seized of the matter. But if there is merit in our submission,
1 it's only right and proper that the integrity and the reputation and --
2 well-deserved reputation of the Bench of this Court and this Tribunal be
3 protected by that danger being removed. That is another reason, in my
4 submission, why the trial date for next week should be vacated, in
5 addition to the evidentiary concerns that we have raised.
6 Your Honour, in this case, when assessing the balancing exercise
7 between the fair-trial rights of Ms. Hartmann and the appearance of
8 justice, it is pertinent and appropriate, in my respectful submission, to
9 note that there is no cost, financial cost, to international justice by a
10 delay, by time being given to the Defence to do that which the Defence
11 say is required.
12 Your Honours, Ms. Hartmann, of course, appears voluntarily,
13 without a warrant. She's not in custody. There is no live case. There
14 is no victim as such that requires closure. In those circumstances, in
15 the balancing of your discretion, I would ask, notwithstanding the fact
16 that Your Honours quite clearly have got a time line, quite clearly
17 anticipate and are ready to hear this matter next week, that the trial
18 date be vacated to allow us to properly and without rush - without rush -
19 seek notice of appeal, seek leave to appeal the various decisions which
20 we seek to impugn, and also to get the evidence that we require from
21 Prosecution witnesses, from the Registry, and the documents we require,
22 to get the translations we require, and in addition to file an
23 application under Rule 15 so that this matter can be settled once and for
25 Your Honour, if it's without merit, you will remain seized; if it
1 has merit, it's only right and proper that the President can appoint,
2 under Rule 15(3) Judges that have not been touched by the investigation,
3 that have not been part of the investigation, and the appointment of the
4 Amicus Prosecutor to investigate the matter and then decide whether or
5 not the Defence application has merit or otherwise.
6 But, Your Honours, in those circumstances, a rush to judgement
7 next week really does not cause -- does not serve, in my humble and very
8 respectful submission, the course of justice.
9 Your Honours, those are the issues I wish to raise that I think
10 are most -- most directly impinge upon today's hearing and the prospect
11 of trial next week.
12 JUDGE AGIUS: Thank you, Mr. Khan.
13 Mr. MacFarlane, do you wish to respond or to comment on any of
14 the submissions that Mr. Khan has made?
15 MR. MacFARLANE: Yes, I do. Thank you very much, Your Honours.
16 I'll endeavour to comment briefly on most, if not all of the
17 points. Some of them are new to me, and I'll endeavour to assist the
18 Chamber, to the extent that I can.
19 With respect to the -- what I believe was the first point
20 concerning a witness located within the Registry of this Tribunal for
21 which immunity was being sought, it was suggested that the evidence or
22 the comments of that individual were relied upon heavily in the
23 proceedings leading up to the order in lieu of indictment. I would
24 suggest that the Chamber take a look again at the report because the
25 report makes it clear that the final recommendation and conclusion that
1 was put forward to the Chamber was based entirely on the words -- the
2 alleged words of the accused herself, and that was made clear in the
4 Secondly, the documents which are sought for translation, which
5 were described as too copious, I don't have any information. I haven't
6 heard anything about that before, so I'm not in a position to comment on
7 that. All I know is that in my experience with that division of the
8 Tribunal, they are very efficient and very effective, and I'm sure that
9 they will move as quickly as possible.
10 JUDGE AGIUS: You can skip that.
11 MR. MacFARLANE: Thank you.
12 The third point, as I have it recorded, concerned the witness
13 from the Office of the Prosecutor, and there is reference to some
14 evidentiary matters. I have a little bit of knowledge on that. I
15 understand that discussions are in process, and if I can assist my
16 learned friend in any way, I'd be happy to try to assist. So I simply
17 put that forward as an offer to him.
18 With respect to the last point which my learned friend described
19 as an awkward one and a proposed motion for disqualification, and he
20 referred to it as a contamination which has arisen in this case, I feel
21 it important for me to describe and emphasise the checks and balances
22 that have been in place right from the beginning.
23 The Chamber was entitled to move directly to an order in lieu of
24 indictment without any sort of investigation if the Chamber so desired,
25 and that has been done before. But rather than moving in that fashion,
1 the Registrar, as the officer in charge and as a neutral party, prepared
2 a document of concern and forwarded it to the Chamber. The Chamber, in a
3 neutral and detached way, reviewed the Registrar's assessment and felt
4 that there is at least some semblance of concern and decided to arrange
5 for the appointment of a neutral and an independent amicus curiae, in
6 fact, someone from 5.000 miles away who had absolutely no connection to
7 the Tribunal, to the accused, or anyone else. So there is a third layer
8 of safeguards that were put in place. That report then went forward to
9 the Chamber. The Chamber, in a neutral and detached way, reviewed that
10 report and arrived at the conclusion that, yes, there was some basis for
11 concern, and issued the order in lieu of indictment.
12 So we have a situation where the Statute, the rules, and the
13 practice direction all at least contemplate varying layers of safeguards
14 and protections, and that worked. That worked in this particular case.
15 There was those layers of safeguards, there were checks and balances at
16 each stage, and we are now in a situation where the order in lieu of
17 indictment was issued in August. There was an amended order in lieu of
18 indictment in October, at the end of October. We have new counsel on the
19 case. There have been a number of motions. The trial date has been set
20 and protected now for quite a period of time.
21 It seems to me that given that backdrop of safeguards and
22 protections, and with the date being set and everything in motion,
23 there's no basis on which to reconsider the composition of the Chamber,
24 and it's my respectful submission that we are in a position to proceed to
25 trial and have a neutral and detached assessment of the evidence based on
1 the merits. Thank you.
2 JUDGE AGIUS: Thank you.
3 [Trial Chamber confers]
4 JUDGE AGIUS: Thank you, Mr. Khan and Mr. MacFarlane.
5 Of course we have taken notes of all your submissions, Mr. Khan,
6 and your submissions, Mr. MacFarlane. Obviously, the most important of
7 these submissions is the last one relating to the intimated arrival of
8 motion of disqualification. We enjoin you to file this motion with the
9 utmost of celerity, please, and with your experience you know exactly
10 why. You have given it a lot of importance. I'm sure it's the product
11 of much thought, and equally, we want to take it as seriously as you
12 propose it. I can assure you it's not the first time in our career that
13 we have been challenged, and it's certainly not going to be the last
15 So we will wait for this motion. We enjoin you to give it
16 priority over everything else, please, and I'm sure -- I am sure that --
17 and I am sure that you will comply. You are two very qualified,
18 experienced lawyers, and you shouldn't find difficulties on this.
19 On the other issues that you raised, as much that one could say,
20 I mean, some could be premature; some could be -- like, for example, the
21 question of immunity, it could easily be solved at the end of the day by
22 Monday morning for all that matters, or by Thursday for all that matters,
23 or even Friday. And the translation issues, finishing or the
24 availability of Prosecution documents, I think at the end of the day, if
25 we put an effort we can find a solution to all these problems to your
1 satisfaction, and whatever needs to be taken care of later on could be
2 taken care of later on.
3 But all this is predicated, of course, on the question of the
4 expected motion of disqualification. We will also give priority to that
5 and see how to dispose of it and when.
6 Because of that, for the time being, obviously, we are not
7 changing the schedule for the start -- for the commencement of trial.
8 You should be prepared to start the trial on the 5th or on the 6th, but
9 obviously we're on shifting ground. Much will depend on what will
10 happen, what will happen. Also, also, because there is the other matter
11 pending, namely, the question of certification, appeal certifications,
12 which we have been given advance notice of.
13 Now, we realise that there is no point in fixing a specific date
14 for the filing of motions for certification of those decisions that have
15 been decided orally today, with written reasons to follow. But the
16 system -- the approach that we are going to adopt is the following: That
17 we're going to divide the motions that have been decided into two
18 categories - those that have already been decided up to yesterday, and
19 for those, if you intend to seek certification for the purpose of
20 appealing in relation to any one of them, you have until the end of the
21 working day on Monday to file the motion, and you will have until
22 Tuesday, the end of Tuesday, to reply, Mr. MacFarlane, or, rather, noon
23 on Tuesday, noon
24 Let me finish, Mr. Khan, please. I will give you all the
25 opportunity to -- we belong to the same system, so we know exactly how to
1 deal with each other, with one another.
2 The other motions, those -- there is one that we decided today,
3 which is a minor motion. I don't know whether you will be seeking -- the
4 one about the 65 ter list. But if you do intend to seek certification
5 for that, you also have up until Monday. It's something which is not
6 controversial, easy, and shouldn't create any problems.
7 The other two, we are going to do our best, our level best, to
8 come down with the written reasons by not later than Tuesday, by not
9 later than Tuesday, and by "Tuesday," I mean the earliest possible on
10 Tuesday. We will then, in the decisions themselves, shorten the time for
11 the filing of motions for certification, and you will have an indication
12 from now that it will be a very short time for the filing of such
13 motions. Of course, by then we would have expected receipt of your
14 motion for disqualification.
15 So you will see that you are going to keep us very busy in the
16 course of next week. I know this is no easy task for anybody, neither
17 for us but certainly not for you, and we do appreciate that we are
18 putting you and also Mr. MacFarlane, because he will have to respond in
19 any case also within a matter of hours, under a lot of pressure. But one
20 of the motions that we have decided today, namely, the stay of
21 proceedings, is something that you will understand if we are going to
22 proceed next week, this is not a matter that can be left for the week
23 after to be decided as to whether there should be certification or not.
24 In other words, whether we start next week or not will depend ultimately
25 on our decision on the motion to stay the proceedings, whether we certify
1 it for appeal purposes and our decision on disqualification, if we can
2 decide that in time before the 5th of February because there is also that
4 Yes, Mr. Khan.
5 MR. KHAN: Mr. President, thank you so much, and to Your Honours.
6 Your Honour, the first issue, I'm very obliged by the very
7 gracious manner in which the Bench dealt with the intimation regarding
8 the Rule 15 application.
9 Your Honour, in relation to the rest of it, in my submission, I
10 do ask the Trial Chamber to be understanding of the realities of a trial
11 process. I know there are at least two very experienced defence lawyers
12 on the Bench that have practiced defence work prior to their elevation to
13 the Bench. Your Honour, the reality is this, that I have, to the best of
14 my ability, adumbrated the evidential hurdles that are yet to be
15 overcome. Even if we obtained waiver from New York regarding important
16 witnesses, we have to speak to those people. We have to interview them.
17 We have to then analyse the evidential work product if we wish to call
18 those individuals as witnesses.
19 Your Honour, we can't -- in my submission, the Bench, to put it
20 quite candidly, should be cautious about any appearance of unseemly haste
21 to judgement in this matter, given that the accused is not in custody,
22 that there are these real issues outstanding. It's very common in trial
23 proceedings to vacate trial dates. It's not the end of the world to
24 vacate a trial date when one is balancing that against the integrity of
25 the process.
1 Your Honours, we don't have information from the Registry. We
2 don't have information and evidence from the Prosecutor. We have not yet
3 got the waiver of immunity to interview witnesses. Your Honour, that has
4 to be put on the scale as to the ability of the Defence to have a real
5 process, a real shot at testing this evidence.
6 If we are to get a real shot at testing the evidence and
7 presenting to the Bench the real pitch of what underlies this matter, in
8 my respectful submission, one has to vacate the hearing for next week.
9 Your Honour, to seek to compress all these multifarious issues, expecting
10 us to have some super-human skills, to respond to these motions, seek
11 applications for leave to appeal, file Rule 15 motions, and try to scurry
12 around and get evidence from the Registry that has provided personnel
13 files for the Prosecution in Rule 33 submissions and is not providing it
14 to us, the Defence, that may materially assist us, is to unnecessarily
15 compress the course of justice into a gap that is unseemly. And, Your
16 Honours, I do ask you to vacate the trial date because there are also
17 issues of witnesses. We have five witnesses that we intend to call, and
18 Your Honours, that will waste money, to get all these witnesses ready to
19 come to court when we're not ready for trial.
20 JUDGE AGIUS: Mr. Khan, you should be ready for trial. When you
21 took over from previous counsel, one of the conditions was your agreement
22 to honouring the trial dates, and the trial dates of the 5th and the 6th
23 of February weren't fixed last week. They were fixed a long time ago,
24 prior to your arrival, and after due consultation with the previous
25 lawyer and also your client because we have also in the course of
1 arriving to this stage always taken into consideration the problems
2 that -- and work exigencies, employment exigencies of your client. So
3 there is no unseemingly haste at all. The dates were fixed a long time
4 ago, and we have ourselves adjusted our timetable, court-scheduled
5 sittings, accordingly to be able to start. Had there been unseemingly
6 haste, we would have acted quite differently.
7 MR. KHAN: Your Honour, can I clarify one point: Your Honour is
8 quite correct that when I accepted the instructions in this case, I said
9 that my appointment and the appointment of Mr. Guenal and the replacement
10 of previous counsel would not be a cause of delay. Our appointment is
11 not the cause of delay. Your Honour, the cause of delay -- if I could
12 mention this issue. On the 30th of December, within a matter of days of
13 our appointment, we contacted New York regarding waiver of immunity of
14 our first witness, and, Your Honour, it continues: further letters on
15 the 6th of January to New York
16 Your Honour, we have not been dilatory. There are procedural safeguards
17 when one is dealing with a bureaucracy and an international institution
18 that is the United Nations, and there are consequences for dealing with
19 that institution and respecting the privileges that are in place.
20 Your Honour, one of our objections with our learned friend is the
21 fact that he spoke to individuals - we've said it in our filings - he
22 spoke to individuals, relied upon them in his submission without a wave
23 of immunity. It would be rank hypocracy for me, then, to do that which I
24 blamed opposing counsel for doing. Your Honour, I am ethnically in my
25 view estopped from contacting these witnesses that are UN staff members
1 without the permission of the Secretary General of the United Nations,
2 and that is the delay, Your Honour, not my appointment.
3 JUDGE AGIUS: I am not going to comment on this, but what you
4 have just raised, namely, that you've had contacts with New York, written
5 once, twice, three times, et cetera, that could constitute one reason why
6 the testimony of that particular witness might have to be delayed. But
7 in itself, do you think it is -- or are you submitting that it should be
8 a reason why the trial should not start at all?
9 MR. KHAN: Yes, Your Honour, I am, because these are important
10 witnesses. One must look, Your Honour, firstly, how many witnesses the
11 Prosecution are calling, and then one must look, which of those witnesses
12 do I wish to speak to? Your Honour, I hoped in the matter of course it's
13 a matter of certification, but we were not given access to statements.
14 Now we have a clear refusal, and a decision that my learned friend was
15 entitled not to follow the normal practice that the OTP carries out and
16 not give statements, of course, increases the burden upon me to know what
17 the witness is going to say, and I am not satisfied with the summaries.
18 So therefore, I have an option, which is to interview these witnesses.
19 Now, in relation to many of these witnesses, already we have
20 sought the waivers. So I think the only that's a public witness is Robin
21 Vincent. I haven't sought any waiver for him. But Your Honour, for the
22 other witnesses -- he's a public witness. They're all public, in fact,
23 for the Prosecution.
24 But, Your Honour, in relation to the staff members, of course I
25 need waiver to be lifted. As I said, Your Honours, you have in good
1 faith, of course, to decide the merits of this application. But when one
2 is adjudging the balancing exercise, the right -- the fairness of the
3 process and the rights of the Defence, simply the fact that a date has to
4 be vacated seems a rather light consideration in the scheme of things,
5 when a woman who has her good name in the scales, and this is a criminal
6 Prosecution, when one is judging that -- Your Honour said on the first
7 initial appearance, Your Honour said at the initial appearance, and I
8 read the transcript carefully, when William Bourdon was then
9 representing, Your Honour talked about the seriousness and the grave
10 implications of these types of charges. Well, Your Honours, they are
11 grave. They are grave for any individual, particularly somebody who has
12 tried to work and assist international justice. In those circumstances,
13 not to allow -- effectively allow the Defence to do what we say, as
14 professional members of the bar, we are required to do is unfortunate.
15 And, Your Honour, when one is exercising your discretion in
16 deciding whether or not to -- I say to rush to judgement next week or
17 to -- in a very balanced and sober and impartial manner step back, allow
18 these motions to be decided, allow us to get responses and interview
19 these witnesses, I think it's - to use an American expression and perhaps
20 a Canadian one - it's a no-brainer.
21 Your Honour, it's my very sincere submission that you consider
22 vacating the date for practical purposes. As I said, there are
23 consequences of witnesses. It is my application, and I have nothing more
24 to add, Your Honour. I'm grateful.
25 JUDGE AGIUS: Thank you, Mr. Khan. We will, of course, take into
1 consideration your submission, but unless you hear from us to the
2 contrary, for the time being the appointment stands. Of course, there
3 are many ifs and buts because many things have -- a lot of water has
4 passed under the bridge since this morning, and we have to take that into
5 account as well. I mean, I can assure you that the three of us are very
6 sober and reasonable in our approach, and I won't say more than that.
7 In the meantime, please, again, once more, I enjoin you to come
8 up with the most important motion of all that we have to give, like you
9 should, absolute priority to. Thank you.
10 Is there any other matter that you would like to raise?
11 [Trial Chamber confers]
12 JUDGE AGIUS: Yes. One suggestion I would like to make, since
13 the time factor has assumed quite an importance and it is definitely our
14 wish to lessen the burden on everyone.
15 You know what the system is like here. You file a motion and by
16 the time it gets to us or to the other party, it takes time, and that is
17 counter-indicated in the present circumstances. But it has to happen.
18 What I'm asking you to do, both of you, is that when you have filings -
19 and you will have in the coming days, both initiating motions and
20 responses - I would like you to exchange courtesy copies with each other
21 and also with our senior legal officer. That will reduce the time that
22 we will need to take stock of what is being submitted and will put
23 everyone in a better position. I hope -- I can only rely on your
24 cooperation on this, and I am sure that coming from the jurisdictions
25 that you come from, you will find no problems in extending to us and to
1 each other this courtesy. Thank you.
2 Is there anything else you would like to raise? Mr. MacFarlane?
3 Do you wish to disqualify us as well? We'll give you the opportunity.
4 MR. MacFARLANE: No, Your Honours. There is only one issue, and
5 it may well be that given the various issue currents that are floating
6 around that it's impossible to determine at the moment, but I find myself
7 in the position of appearing on behalf of the Prosecution and also being
8 listed as a witness on behalf of the Defence, and at some point that will
9 have to be determined.
10 JUDGE AGIUS: Obviously.
11 MR. MacFARLANE: It's very difficult for me to prepare for the
12 trial, to be preparing as a witness and to prepare for an interview at
13 the same time.
14 JUDGE AGIUS: Yes, but it's not our intention to put the cart
15 before the horse. I mean, we'll wait and come -- decide that issue, if
16 it arises at all, in due course. So let's not deal with matters that can
17 still wait.
18 Anything else? No.
19 So I thank you all coming and for the practical approach that you
20 have taken within the limited circumstances in which you can operate,
21 both of you, and we will hear from you and you will hear from us, of
22 course, in the course of next week. Thank you.
23 The Status Conference is adjourned.
24 --- Whereupon the Status Conference adjourned
25 at 4.56 p.m.