Tribunal Criminal Tribunal for the Former Yugoslavia

Page 231

1 Friday, 12 January 2007

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 5.32 p.m.

6 JUDGE KWON: Good afternoon, everybody.

7 Please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. This is the case

9 number IT-04-84-PT, the Prosecutor versus Haradinaj et al.

10 JUDGE KWON: Thank you.

11 Can I have the appearances.

12 MR. RE: Good evening, Your Honour, for the Prosecution, David Re,

13 accompanied by Gramsci Di Fazio, Gilles Dutertre, Katrina Gustafson, and

14 our case manager Kim Fischer.

15 JUDGE KWON: Thank you, Mr. Re.

16 MR. EMMERSON: Your Honour, on behalf of Mr. Brahimaj, I appear,

17 Ben Emmerson, together with Mr. Rod Dixon, Ms. Susan Park, and Ms. Marina

18 Akenova.

19 JUDGE KWON: Thank you, Mr. Emmerson. And for the Defence of

20 Balaj.

21 MR. GUY-SMITH: Good evening, Your Honour, Gregor Guy-Smith

22 appearing for Mr. Balaj with the assistance of Colleen Rohan and Natalie

23 Van Den Berge.

24 JUDGE KWON: Thank you, Mr. Guy-Smith.

25 MR. HARVEY: Your Honour, Richard Harvey appearing for

Page 232

1 Mr. Brahimaj, assisted by Ms. Antoniette Trapani.

2 JUDGE KWON: Thank you, Mr. Harvey.

3 I note that Mr. Haradinaj is on provisional release and two other

4 accused are with us today. I would like to make sure that Mr. Balaj and

5 Mr. Brahimaj are following this procedure in the language they understand.

6 Mr. Balaj.

7 THE ACCUSED BALAJ: [Interpretation] Your Honour, yes, I do, and

8 thank you very much.

9 JUDGE KWON: Mr. Brahimaj.

10 THE INTERPRETER: Microphone, please.

11 JUDGE KWON: Could you repeat your response again because the --

12 your microphone was not activated.

13 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, Your Honour.

14 JUDGE KWON: Thank you, Mr. Brahimaj.

15 Well, this is the second Status Conference I have in this case

16 since I was assigned to this case last -- July last year. Probably as all

17 the parties will be aware, the case has -- as the start of the trial draws

18 near, this probably will be the last Status Conference I have or the --

19 held on the part of the pre-trial Chamber. And it seems to be very likely

20 that this case will be re-assigned to the Trial Chamber that will hear the

21 case some time -- as soon as some time next week. And so my purpose today

22 is to tidy up the -- all the outstanding motions and explore what can be

23 done on the part of the Trial Chamber and make a clear list of the Trial

24 Chamber of the outstanding matters.

25 So, before I begin with the pending motions, first of all, I would

Page 233

1 like to inform the parties of the fact that the Trial Chamber just issued

2 the decision on the Prosecution motion seeking leave to amend the

3 indictment and -- which was filed November -- sometime November. So I

4 hope the parties were handed over the courtesy copies of the decision.

5 Can I get that?

6 MR. RE: Yes, the Prosecution has a copy, yes, Your Honour.

7 MR. EMMERSON: Your Honour, yes.

8 JUDGE KWON: All the Defence?

9 MR. GUY-SMITH: That is correct.

10 MR. HARVEY: Thank you, Your Honour.

11 JUDGE KWON: Thank you very much.

12 So in that decision where the Chamber granted the Prosecution

13 motion seeking leave to amend the indictment by substituting a second

14 revised amended indictment filed on 10th November. And at the same time,

15 the Chamber ordered the Prosecution to file its pre-trial brief by 26th of

16 this month, which is two weeks' time from now, and ordered the Defence to

17 file their respective pre-trial brief in two weeks' time from the date of

18 the filing of the Prosecution's filing of their pre-trial brief.

19 And that said, I would like to turn to other outstanding motions

20 and deal with other items, and we'll hear from the parties if there's

21 anything they would like to raise. First, there's a minor outstanding

22 motion from the Prosecution seeking further directions pursuant to Trial

23 Chamber's order regarding exhumations, which was filed just after I issued

24 the order requesting assistance of UNMIK with certain investigation on

25 19th of October, 2006.

Page 234

1 Since I find -- found that the -- it would be a matter of course

2 for the Defence to comply with the Rules and the practice of the Tribunal,

3 I didn't act upon the order. But since -- at any rate, as the Defence

4 teams have already carried out the exhumations in question, I think this

5 motion is now moot; and -- unless there's a serious opposition from the

6 Prosecution, I will dismiss the motion as moot.

7 MR. RE: It's entirely moot now, Your Honour. Thank you.

8 JUDGE KWON: That's so decided.

9 I'd like to turn to the Prosecution's motion for variation of the

10 Trial Chamber order in relation to very -- in relation to confidential

11 materials, which is related to witnesses K5 and K6. So if Mr. Re can

12 wrap-up this situation in relation to that matter in brief terms.

13 MR. RE: It remains as we reported to Ms. Murnane in the Rule 65

14 ter conference yesterday. One of the witnesses is undergoing intense

15 psychiatric care, and the other one has not been located through VWS. We

16 will probably have a report from VWS, which we can furnish to the Defence

17 and Trial Chamber next week. I can't take it any further today.

18 JUDGE KWON: When next week? A week's time from now?

19 MR. RE: Yes, please. VWS has told us that they will have a

20 report for us next week some time.

21 JUDGE KWON: Without prejudice to the merit of the case, without

22 touching upon the merit of the case, I think the Prosecution can, as an

23 interim measure, disclose immediately of the material in redacted form.

24 Has it been done or not?

25 MR. RE: I think we've prepared -- I think we have it prepared in

Page 235

1 redacted form. My -- I'm relying on my memory from about six weeks ago.

2 I think it was ready to go.

3 JUDGE KWON: But if you could immediately disclose those materials

4 in redacted form and file a report in a week's time as to the feasibility

5 of the interviews of those witnesses, and then the Trial Chamber can deal

6 with it -- can act upon the written submission from the Prosecution.

7 MR. RE: Most certainly.

8 JUDGE KWON: If the Defence would have any say on -- in relation

9 to this matter.

10 MR. EMMERSON: Well, that -- Your Honour, we've indicated that

11 we've no objection to the service for the time being on an interim basis

12 of the material in an redacted form, and it would be very useful to have

13 it as soon as possible.

14 JUDGE KWON: I'd like to emphasise this as an interim measure

15 without prejudice to the merit or Balaj Defence's opposition.

16 MR. EMMERSON: So in a sense at the end of the day, the motion

17 will inevitably remain pending until that process has been taken forward.


19 I take that the other -- the position of the other Defence to be

20 the same? Thank you.

21 Then the witness 30, a source, an agent, I take it that the

22 interview took place with the source and the second person, and the

23 interview with the witness 30 is still outstanding with the motion from

24 the Prosecution with the extension of time.

25 Can I hear the -- for the development from the Defence first of

Page 236

1 all.

2 MR. EMMERSON: Your Honour, the position is that witness --

3 witness interviews proceeded yesterday afternoon and this morning in

4 respect of the second person and the source. I think Your Honour knows

5 that the position of the Prosecution, as outlined at yesterday's Rule 65

6 ter meeting, is that further inquiries have recently been made and since

7 the last filing of the Prosecution have been made again of witness SST730

8 and that he remains unwilling to make himself available for an interview

9 by the Defence. And as the matter was left yesterday, we have requested

10 that the Prosecution should nonetheless take from him a statement dealing

11 with the bribe allegations so that we have in writing his account in that

12 regard.

13 JUDGE KWON: Until that time, the Defence motion for the -- for

14 seeking the identity of the source and et cetera will remain?

15 MR. EMMERSON: The Defence motion remains outstanding until, as we

16 would submit, each of those matters has been finally concluded. But as

17 Your Honour knows, the interview process in respect of those two

18 individuals has taken place. The situation, as I think Your Honour is

19 aware, is that when the last order was made in respect of those matters,

20 the Trial Chamber was not aware of the involvement of the second person,

21 but certainly we would -- we would request that this matter be left in

22 abeyance until the Prosecution has completed that aspect of its inquiries

23 that involves seeking a statement from SST730.

24 JUDGE KWON: Thank you. I wonder if the Prosecution has responded

25 to the Defence request, at least to have a written statement of witness

Page 237

1 30. What's the position of the Prosecution?

2 MR. RE: We've gone about as far as I think we can with this.

3 Since we filed the application for an extension on the 5th of January, we

4 have contacted the witness again. The witness made clear that he declined

5 to speak to the Defence. There's nothing we can do that make him change

6 his mind. We've spoken to him several occasions, asking him to speak to

7 the Defence. Mr. Thomas Obruca, an investigator, we appended an

8 application of Mr. Obruca to an application of the 5th of January. That

9 information contains the gist of what he would say, that is basically

10 denying that he ever provided that information to the second person or the

11 source. But I'm afraid, Your Honour, it's not going to get any better,

12 that's as far as we can take it, that the witness told Mr. Obruca that he

13 denied it. So --

14 JUDGE KWON: So then does it mean the Prosecution application for

15 an extension of time to comply with the Trial Chamber's order is now -- is

16 moot?

17 MR. RE: That, too, is moot. Yesterday, Ms. Murnane invited us to

18 file something. If Your Honour wishes us to file something, we can file

19 something in writing or we can advice you now. But it is essentially

20 moot. We've taken it as far as we possibly could. We've made all good

21 faith efforts to, A, get the witness to speak to the Defence; if that

22 failed, B, take a statement from him. We can't get anything else at the

23 moment.

24 JUDGE KWON: Given the situation of the case that the case will be

25 re-assigned to the Trial Chamber, I will like you to file a report in

Page 238

1 brief terms so that the Trial Chamber can act upon and the Defence can

2 also act upon the written submission from the Prosecution.

3 Yes, Mr. Guy-Smith.

4 MR. GUY-SMITH: Thank you, Your Honour, if I might. If I

5 understand the exact position in which we are in presently, not only did

6 Mr. Obruca speak with the witness, but he forwarded the witness a

7 statement to be signed, which the witness refused to sign. And so we are

8 left with a situation whereby the information contained in the interview

9 between Mr. Obruca and the witness has yet to be memorialised in any

10 fashion that I know of. If the report that Your Honour is requesting the

11 Prosecution to file at this time includes a declaration from Mr. Obruca, I

12 think that might bring the matter so some form of finality at this point

13 with regard to as far as the things have gone.

14 But I think we need to, for purposes of establishing a pure

15 historical record of what's occurred here, have some -- have some

16 indication of what was said as between Mr. Obruca and the witness in the

17 form of a declaration signed by Mr. Obruca at this point. Since the

18 witness himself apparently from the last declaration we received from Mr.

19 Obruca has refused to sign such statement.

20 JUDGE KWON: Any observation from the Prosecution?

21 MR. RE: I have no difficulty with doing that. It would be

22 similar to investigator's notes.

23 JUDGE KWON: Yes, that would be helpful.

24 Minutes ago I erroneously stated that the Defence motion is still

25 outstanding. I just forgot that it has been denied. So the Defence can

Page 239

1 act upon, depending on what the Prosecution will say, in its report.

2 MR. EMMERSON: Your Honour, the motion that remains technically

3 outstanding is the Prosecution's motion for an extension of time within

4 which it can comply with the order of the Trial Chamber made in response

5 to the position of the Defence on the redaction motion. And Your Honour's

6 quite right to say the redaction motion itself is to be disposed of with

7 those conditions.

8 The -- in effect, the outstanding issue or the framework within

9 which the outstanding report is to be made is that there remains before

10 the Trial Chamber a Prosecution application, but it is an application for

11 an extension of time, to conduct interviews that now appear, as Mr. Re

12 points out, to be clearly, interviews that won't take place and therefore

13 that part of it is moot.

14 JUDGE KWON: Thank you, thank you.

15 To clarify the matter, in order to formally address the

16 Prosecution motion for extension of time, I will grant the motion and I

17 will give a week from now to -- I will order -- hereby order the

18 Prosecutor to file its report in a week's time, by 19th of January, next

19 Friday, and that's the alleged bribe attempt case.

20 And then I'll turn to the issue of notes of witness 29. And what

21 I was informed that the Prosecution had got a note from the witness and

22 handed it over to the Defence; but apparently, according to the Defence,

23 it does not seem to be the very note referred to in his statement. And

24 the Prosecution is not sure whether it is the very note or not. That's

25 the case so far I understood.

Page 240

1 I would like to know whether there is further development.

2 MR. RE: Could Your Honour excuse me for just one moment?


4 MR. RE: Thank you.

5 JUDGE KWON: By all means.

6 [Prosecution counsel confer]

7 MR. RE: The situation is, Your Honour, as outlined. The witness

8 provided us with some notes. It's four years since the statement was

9 taken. We have contacted him in the last few days after receiving

10 inquiries from Defence counsel. We double-checked with him. He is not

11 entirely sure. He thinks he might have some other notes. We've asked him

12 to go back and look in all places where notes might be and to please

13 produce those to us. The notes -- any other notes may be in another

14 location to where he is at the moment. It's not something which will

15 occur straight away, but we've put the request in to him.

16 JUDGE KWON: So -- I wonder the Prosecution is in a position to

17 file any report in relation to that matter in a week's time or something

18 like that.

19 MR. RE: Of course.

20 JUDGE KWON: A week would be sufficient.

21 MR. RE: Yes.

22 JUDGE KWON: At the same time, in relation to this matter, I'd

23 like to ask the Defence whether in -- as to the practical use of this

24 subpoena, if ordered. If the -- if the witness or the Prosecution would

25 not be able to locate the notes, so what point would there be to -- for a

Page 241

1 subpoena to be issued?

2 MR. EMMERSON: At the time that the application was made, the

3 indications were that the witness was unwilling to produce notes that he

4 had in his possession. Notes have now been produced, but has Your Honour

5 knows there appears to be a divergence between the notes produced and the

6 notes which the witness refers to in his witness statement. Now, the

7 position as matters currently stand, as we would submit it, would

8 certainly be premature at this stage for this motion to be either

9 withdrawn or denied because further inquiries need now to be made.

10 But I quite concede if a position should be arrived at that there

11 are no other notes in existence and that is confirmed and clarified, then

12 an order to produce that which does not exist would be a futile order.

13 But at the moment, we don't have that position of clarity, because further

14 inquiries are being made and the witness has indicated a willingness to

15 ascertain whether the notes are in existence that can be voluntarily

16 produce.

17 It may be in due course that a coercive order is necessary, and

18 given the indication that Your Honour that a week, or thereabout, should

19 be an appropriate time-frame for a Prosecution report. We would again, in

20 respect to this motion, simply invite you leave it pending.

21 JUDGE KWON: The same treatment without pledging up on the merit

22 of the case and wait for the Prosecution's report in relation to this

23 matter. So I will expect the Prosecution to file its report by 19th of

24 January, a week's time from now.

25 I think I dealt with all the outstanding motions for now, and I

Page 242

1 will now turn to the disclosure issues. I was just informed by the

2 Prosecution, just before I came into the courtroom, that Rule 66

3 disclosure has been all resolved. Can I hear from Mr. Re about it,

4 please.

5 MR. RE: The letter we furnished to the Senior Legal Officer

6 earlier today said any remaining Rule 66 materials will be disclosed

7 today. Today isn't quite over. We have a -- we are finishing burning

8 them on to the CD-ROM and I think we have 322 documents, which will be put

9 in Defence counsels' locker after this Status Conference.

10 JUDGE KWON: What can I say. Let's expect all the disclosure will

11 be done by Prosecution by the end of today; and if there should be any

12 disagreement, then who should report to the Trial Chamber as to the

13 disagreement, if any? Prosecution -- it would be for the Defence.

14 MR. EMMERSON: Yes. I think Your Honour has the memorandum

15 prepared on behalf of the Haradinaj Defence dated the 8th of January in

16 preparation for the Rule 65 ter meeting and Status Conference. And at

17 paragraphs 4 and 5 of that memorandum are set out under the headings

18 Forensic Disclosure and Other Disclosure, a series of bullet points

19 enumerating those aspects of the Defence 66(B) disclosure request that

20 remain outstanding. And, certainly, we'll obviously need an opportunity

21 to assimilate the material which the Prosecution proposes to disclose

22 today; but having done that and as soon as we've done that, we will then

23 report back to the --

24 JUDGE KWON: Trial Chamber.

25 MR. EMMERSON: -- Trial Chamber, as to whether the items listed in

Page 243

1 our memorandum have all been complied with and insofar as there may be any

2 difference between the parties, identifying that difference and making

3 proposals as to how we might move forward to resolve it. We do say seven

4 days, so by next Friday, for the Defence to make a short report to the

5 Trial Chamber on the extent of Prosecution compliance with the requests

6 listed in paragraphs 4 and 5 of the 8th of January memorandum.

7 JUDGE KWON: That would be very helpful, but my information is

8 that the sixth bullet point on page 4, i.e., the names of the persons

9 appearing in various photos, it's impossible for the Prosecution to

10 provide with names.

11 MR. EMMERSON: Yes, I think Your Honour will be aware that was the

12 subject of some discussion yesterday at the Rule 65 ter meeting; and as I

13 recall it, the way that the matter has been left is that the Prosecution

14 would use its best endeavours to check a final time whether that truly is

15 the position. Because the effect or the burden of the Prosecution's

16 position is that photo line-ups were prepared from randomly selected

17 photographs provided or obtained from the database of the Kosovo

18 Protection Corps without the relevant investigator making or taking any

19 steps to record the identities of the placebo photographs. That is,

20 obviously, on its face a slightly surprising state of affairs, so a

21 request has been made simply for the Prosecution to clarify whether indeed

22 that is the position; and if it is, then plainly that is a request that is

23 impossible to meet for whatever reason that is the position.

24 JUDGE KWON: Thank you, Mr. Emmerson.

25 Mr. Re, does the material you are going to disclose by the end of

Page 244

1 today include the confidential materials in the Milosevic case which the

2 Defence seeks to have access?

3 MR. RE: That's a different matter --

4 JUDGE KWON: That's a different --

5 MR. RE: -- that the registry is disclosing that. We had

6 communications today from the registry in relation to disclosure of that

7 material. They would be in a better position to advise because we sent

8 them the material on I think the 4th of December.

9 JUDGE KWON: Thank you. I know that.

10 Then I have to hear from the Defence in relation to that matter,

11 as to the development.

12 MR. GUY-SMITH: Excuse me.

13 JUDGE KWON: Mr. Guy-Smith.

14 MR. GUY-SMITH: Before we turn to that matter, I should point out

15 with regard to issues concerning photo line-ups, I delivered a letter to

16 the Prosecution I believe about a day or two ago, requesting that the

17 Defence receive all protocols that the Prosecution has with regard to the

18 general identification procedures utilised by the OTP and other

19 investigative agencies.

20 And the reason I'm mentioning that at this point is because it

21 seems to segue into some of the concerns that were raised by Mr. Emmerson

22 with regard to the identification of the individuals, as he calls them,

23 placebos.

24 JUDGE KWON: I beg your pardon. I didn't follow the protocols.

25 What do you mean by protocols?

Page 245

1 MR. GUY-SMITH: There are -- from my understanding, within the

2 OTP, a series of protocols and procedures that have been outlined for

3 purposes of engaging in line-ups when they are at the investigative stage.

4 We have asked for those protocols so that we can make a determination,

5 because it probably will become an issue in this case as to whether or not

6 the identification procedures that were used were appropriately done. And

7 in order to make a determination of whether that's the case, we need to

8 know what training experience and protocols the investigators were given

9 prior to engaging in the photo line-ups procedures.

10 JUDGE KWON: Can I ask again the photo line-up proceedings.

11 MR. GUY-SMITH: Sure. Generally speaking, the manner in which

12 eye-witness identifications occur, apart from, let's say, that which

13 occurs in the highly suspect situation of in court and in-dock

14 identification, is that an individual be shown a photo-board. When shown

15 a photo-board, the photo-board will have a number of photographs on it.

16 There are a series of procedures that attend showing any witness that

17 photo-board. For example, if the interviewer says: Will you please pick

18 out the person who is guilty on the photo-board, that would be an

19 inappropriate procedure, for example.

20 As I understand it, having gone through this matter in a prior

21 proceeding at the Tribunal, there are definite procedures that are either

22 applied or not applied by the investigators who are engaged in showing

23 people these photo-boards. So when I'm asking for photo line-up

24 procedures, I'm asking for the information that has either been compiled

25 by the Office of the Prosecutor or by other investigative agencies, as it

Page 246

1 relates to the manner in which the investigator is going to show any

2 particular potential witness photo-boards.

3 JUDGE KWON: Thank you.

4 Can I hear from you, Mr. Re.

5 MR. RE: Yes. As Mr. Gregor Guy-Smith outlined, he sent us a

6 letter and I'm dealing with it and I'll respond to it quite shortly.

7 JUDGE KWON: Thank you.

8 I don't think there should be a deadline for that. You can

9 respond very soon, at least in a week's time?

10 MR. RE: Yes.

11 JUDGE KWON: Yes. I like to have some deadline instead of having

12 those matters hanging around. Thank you.

13 Mr. Emmerson.

14 MR. EMMERSON: Your Honour, shall I now reply to Your Honour's

15 question in relation to the confidential material arising out of the

16 Milosevic case? I think that was the --

17 JUDGE KWON: Yes, please.

18 MR. EMMERSON: -- item you wanted me to deal with.

19 JUDGE KWON: Thank you.

20 MR. EMMERSON: Very briefly, Your Honour will recall that on the

21 27th of September, a direction was given that all confidential

22 interparties material relevant from the Milosevic case relating, that is,

23 to the Kosovo part of the indictment be made available, subject to any

24 Rule 70 objections that the Prosecution needed to bring to the attention

25 of the registry. The position is that shortly before Christmas, a series

Page 247

1 of transcripts were sent out by the registry; but on examination, these

2 transcripts are simply material which is already available on the judicial

3 database; that is to say, redacted, open transcripts of witness testimony

4 in the open part of the trial itself.

5 During the course of yesterday's Rule 65 ter conference, the

6 Prosecution indicated that it had complied with its duty to notify the

7 registry by letter of Rule 70 objections in respect of that body of

8 material and it appended a CD-ROM, but the registry apparently had not

9 received it. And, therefore, the matter was left yesterday on the basis

10 that as between the registry and the Prosecution, inquiries would be made.

11 And I think Your Honour was provided with a copy of the letter that the

12 Prosecution had, in fact, sent or drafted for the purposes of being sent

13 to the registry. So in a sense, the resolution of this problem is a

14 matter as between the registry and the Prosecution, because unless or

15 until the Rule 70 communication has been received and acted upon, the

16 registry are not in a position to make the disclosure.

17 JUDGE KWON: So I anticipate no problem on the part of the

18 registry to disclose those confidential material, excluding the Rule 70

19 material, until Prosecution get the permission from the provider. And I

20 haven't heard from the registry in relation to that matter, but I think as

21 a matter of one or two days, speaking for myself.

22 MR. EMMERSON: I'm very grateful. Obviously, the sooner the

23 material is available --

24 JUDGE KWON: I'm not sure. I have to check that matter with the

25 registry.

Page 248

1 THE REGISTRAR: If I may, Your Honour, the registry has been in

2 contact with the Prosecution and, indeed, we have received the letter

3 provided by Mr. Re during the 65 ter conference, in fact we received it

4 earlier. But we are working on that and we hope that we'll be able to

5 send the confidential material to the Defence sometime next week.

6 JUDGE KWON: That's a very positive statement. Thank you.

7 And then the remaining thing will be the -- will be for the

8 Prosecution to get the permission or clearance from the provider. And I

9 haven't read in detail about the -- the quantity of Rule 70 material, so

10 can I ask how long would the Prosecution need to -- to take care of those

11 matters.

12 MR. RE: I just can't say. We're seeking clearance. Your Honour,

13 of course, was in the Milosevic case and is aware of the various

14 institutions and governments and the length of time it sometimes takes

15 them to reply to our request. We have -- we are saying that it's required

16 in an upcoming trial. I -- unfortunately, I just can't give you an

17 answer. I'm sorry.

18 JUDGE KWON: So in this matter -- in relation to this matter,

19 instead of placing a specific deadline, I will recommend the Prosecution

20 to deal with the matter as expeditious as possible.

21 Any observation from the other Defence on this matter? No.

22 Then -- and it is my understanding that the Prosecution will file

23 today the motion for -- in -- 94 bis, i.e., the expert witnesses.

24 MR. RE: It was filed, I'm told, at 3.55.

25 JUDGE KWON: It has been filed.

Page 249

1 MR. RE: But I advise the Trial Chamber and the colleagues from

2 the Defence that there are four outstanding expert reports that we are in

3 the business of obtaining at the moment, and we will be in a position to

4 file those within two weeks. We have filed, I think, the eight that we

5 have.

6 JUDGE KWON: Thank you.

7 In the previous order, I ordered -- I'm not sure whether it was I

8 or the Trial Chamber that -- it was ordered to the Prosecution to file the

9 92 bis/92 ter motion by today, but it is my -- I was informed that

10 Prosecution would not do that. And I -- my query would be whether

11 Prosecution would be able to file that motion by the time when it is -- it

12 is filing the pre-trial brief, which means two weeks' time from now.

13 MR. RE: The motion, if I recall, said, if any, the qualification

14 was "if any." We probably wouldn't be in a position to do it in two

15 weeks. The reason for this is that there -- the Prosecution and Defence

16 are in active discussion about the agreed facts and the scope and ambit of

17 the trial.

18 And once we have our witness list to the Defence with a pre-trial

19 brief, they'll be in a much better position to assess where they go with

20 agreements; and from that, we can sit down with the Defence and work out

21 of court without filing a motion -- before filing a motion and possibly

22 with the agreement of the Defence to which there would not be disagreement

23 in relation to Rule 92 bis and ter.

24 So if I could ask for some - what's the word? - laxity --

25 flexibility in dealing with this, because we are in discussions with the

Page 250

1 Defence. And it may assist in focusing on some of the issues in the trial

2 rather than us filing something in a vacuum.

3 JUDGE KWON: The same will apply to the agreed facts and the

4 adjudicated facts?

5 MR. RE: Yes. The Defence, as reported at the conference

6 yesterday, are still obtaining instructions from their clients in relation

7 to some of the agreed facts. We gave them, I think it was, 888

8 proposals for agreement, plus adjudicated facts from the Limaj judgement.

9 The two -- the various parties are attempting to get them into something

10 which we can file, which of course impacts on which witness we would call

11 and impacts on the 92 bis and ter motions. So it basically comes as a

12 package, the three.


14 In relation to that, I would like to -- appreciate the very

15 constructive and fruitful discussion among the parties in relation to the

16 agreed facts and adjudicated facts.

17 Yes, Mr. Emmerson.

18 MR. EMMERSON: Your Honour I hope will have seen - and certainly

19 if you haven't seen it yet, it is available - the letter which the Defence

20 served on the Prosecution on the 9th of January, in compliance with the

21 13th of December order in respect to agreed facts.

22 JUDGE KWON: I have, Mr. Emmerson.

23 MR. EMMERSON: Which also, as Your Honour will have seen, records

24 specific proposals for reducing the scope of the indictment and shortening

25 the trial. As far as the agreed facts proposals are concerned, some of

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1 them I think Your Honour is aware were served by the Prosecution very

2 recently indeed. We expect to be in a position to keep that process

3 continuing and to deal with each of the areas of the admissions the

4 Prosecution has so far served and as well, as Your Honour will have seen,

5 a certain and more general agreement of facts arising out of the Limaj

6 judgement and otherwise concerning the military background issues in the

7 case, all of which we anticipate have the potential to shorten the

8 requirement for oral evidence in that regard.

9 Your Honour, whilst I'm on my feet, may I mention one further

10 matter allied to the Milosevic confidential material which we passed over

11 without comment; and that is that in addition to the closed material in

12 Milosevic, there is an ongoing disclosure process for the closed material

13 in the Limaj case. And just if I may to put on record the position that

14 the registry have indicated that that material will be served on the

15 Defence within the coming days, in other words in what is the proposed

16 timetable with respect to the confidential material in Milosevic.

17 JUDGE KWON: Yes. Thank you. I would expect those materials to be

18 disclosed as soon as possible.

19 So the -- I would very much recommend the -- encourage the parties

20 to go on the -- discussing the narrowing the scope of the case or the --

21 to reach on the agreed facts and adjudicated facts. So after the Defence

22 would have filed their pre-trial brief on their part, the Prosecution

23 would be in a better position to report to the Chamber as to the final

24 agreement or the 92 bis -- its position in relation to 92 bis motion or

25 something like that?

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1 MR. RE: There is one technical matter arising from Your Honour's

2 discussion here, and that is the motion that directed us to file an

3 adjudicated facts motion, if any, by today. I think the parties are in

4 agreement if we were to ask jointly for Your Honour to suspend that

5 portion of the order, to allow us to continue the discussions and to put

6 something before the Trial Chamber at a later point.

7 JUDGE KWON: Yes. So I will now make an a ruling as to the

8 deadline of the agreed facts or adjudicate facts; but in relation to the

9 92 bis or 92 ter motion, I would like to ask the Prosecutor to file its

10 motion in a week's time from the filing of the Defence pre-trial brief. I

11 think that's sufficient at least. Thank you.

12 And due to the amendment of the indictment, not only by the recent

13 one but also by the previous one, a further appearance to enter pleas to

14 new charges by the accused will be necessary. But I think that can be

15 done either at the time of the pre-trial conference or at any date the

16 Trial Chamber would set. There would be no difficulty in that.

17 I wonder if there's any issue in relation to the disclosure thing.

18 Not anymore?

19 MR. EMMERSON: Is Your Honour referring to the letter from the

20 Defence of Mr. Haradinaj?

21 JUDGE KWON: No, disclosure in general.

22 MR. EMMERSON: Other than the issues that we've already covered

23 and also covered in the written memorandum.


25 MR. EMMERSON: I think there were no other issues that need a

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1 direction from Your Honour at this stage.

2 JUDGE KWON: I think I dealt with all the agenda I noted down on

3 my agenda.

4 I'd like to hear whether -- from the parties if there's anything

5 to raise now.

6 Mr. Re.

7 MR. RE: Nothing from the Prosecution, Your Honour.

8 JUDGE KWON: And how about the Defence?

9 MR. EMMERSON: No, Your Honour, nothing further.

10 MR. GUY-SMITH: Nothing further, Your Honour.

11 JUDGE KWON: And, Mr. Harvey?

12 MR. HARVEY: Nor I at this stage. Thank you, Your Honour.

13 JUDGE KWON: I think I received a letter from Defence of Haradinaj

14 and Brahimaj in relation to the Rule 67 or the alibi or the -- I haven't

15 heard anything from Mr. Balaj's Defence. Do you have in mind to file

16 anything in relation to that matter?

17 MR. GUY-SMITH: At the present time as I read the rule and the

18 law, no. We are denying the charges against Mr. Balaj and expect the

19 Prosecution to come to the table and attempt to meet its burden in that

20 regard.

21 JUDGE KWON: Thank you.

22 Yes, then, as I said, this is my last Status Conference, and I

23 wish everybody a very happy new year and good luck. The hearing is now

24 adjourned.

25 --- Whereupon the Status Conference

Page 254

1 adjourned at 6.22 p.m.