Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3874

1 Thursday, 10 May 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.09 a.m.

5 JUDGE ORIE: Good morning to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 First of all, I'd like to welcome the representatives of UNMIK and

11 I would like -- I would invite them introduce themselves.

12 Microphone, please.

13 MR. BORG-OLIVIER: Thank you, Your Honour. My name is Alexander

14 Borg-Olivier, I'm the legal advisor for UNMIK in the office of the SRSG.

15 MS. CIARAVOLO: Good morning. My name is Annunziata Ciaravolo, I

16 am the deputy director, department of justice and chief international

17 prosecutor.

18 JUDGE ORIE: Thank you, Madam Ciaravolo.

19 MR. DALTON: Yes, good morning, Your Honour. My name is Nathan

20 Dalton, I'm the special assistant to the director of the department of

21 justice, UNMIK.

22 JUDGE ORIE: Thank you, Mr. Dalton.

23 This morning we have not the hearing as usual hearing testimony,

24 but the Chamber has invited UNMIK for two reasons. First of all, the

25 Chamber would like to be informed in more detail about the concerns UNMIK

Page 3875

1 apparently has in giving its consent for disclosure of certain material

2 provided confidentially to the Prosecution. And the second purpose is to

3 see whether the matter can be resolved in one way or another. The issue

4 has been raised by Mr. Guy-Smith in a motion of the 12th of January of

5 this year. I understand that the UNMIK representatives have had an

6 opportunity to look at the transcripts where the matter was discussed and

7 that also the parties have been kind enough to provide you with

8 correspondence they exchanged on the matter.

9 I do understand that UNMIK has, until now, given its consent for

10 disclosure of quite a number of pages of two investigation files but not

11 for all of them. And the major point of concern is that the Prosecution

12 has informed this Chamber that among the non-disclosed pages there are 16

13 pages which contain exculpatory material. I'm always a bit hesitant to

14 say "exculpatory material." Some would say potential exculpatory

15 material, but if we define exculpatory material in accordance with the

16 text of Rule 68, then the potentiality is already included in the

17 definition because Rule 68(i) says: "... material which in the actual

18 knowledge of the Prosecutor may suggest the innocence or mitigate the

19 guilt of the accused or affect the credibility of Prosecution evidence."

20 The problem for the Chamber is the following. If there exists

21 material of an exculpatory nature which the Chamber is unaware of, this

22 creates a risk that we might make a mistake in whatever determinations we

23 make. That's one. On the other hand, if we would just order disclosure

24 of this material, then from the UNMIK's missions I do understand that they

25 do not exclude that the Chamber may have the authority to do so. But if

Page 3876

1 we would too easily do that, we might disencourage entities or persons at

2 a later stage to provide relevant information under Rule 70.

3 So the Chamber has to find a fair balance between not discouraging

4 anyone to provide information to the Tribunal, even if it would be on a

5 confidential basis; and at the same time to guaranty that the trial

6 against the three accused in this case is still fair. That's our problem.

7 And the first issue the Chamber would like to raise is we would

8 like to invite UNMIK where UNMIK has expressed, as far as we understand

9 until now, that a redaction of the material would not sufficiently serve

10 the -- or meet the concerns of UNMIK. Whether UNMIK has further examined

11 the material and whether there are any alternatives for providing the

12 relevant information and at the same time not violating or not -- in a way

13 not prejudicial to perhaps the witnesses. The Chamber of course doesn't

14 know what the material is, whether these are reports, whether these are

15 testimonies or statements of witnesses.

16 So first of all I'd like to invite UNMIK to further inform the

17 Chamber about the efforts made until now and whether UNMIK has considered

18 any alternatives apart from full disclosure or partial disclosure of the

19 16 pages we are talking about.

20 We started in open session. If at any moment the UNMIK

21 representatives would consider it appropriate that the public would not be

22 informed about the information UNMIK wants to provide to the Chamber, you

23 may apply for private session, which means that whatever you say at that

24 moment will not be disclosed to the public. Of course everyone in this

25 courtroom would hear what you say. If at a certain moment UNMIK would

Page 3877

1 consider it necessary to address the Chamber in the absence of the

2 parties, please indicate so. This is not to say that the Chamber will

3 then grant that immediately. The Chamber might want to hear from the

4 parties whether the parties would agree with such a procedure, but at

5 least tell us if there are any such wishes.

6 Mr. Borg-Olivier, could you please respond to my invitation.

7 MR. BORG-OLIVIER: Thank you, Your Honour. If I may, I would like

8 to start with a general kind of statement, where I would state that UNMIK

9 of course fully recognises its responsibility to assist the ICTY and its

10 processes in every way it can. This is an obligation that it has stemming

11 from the resolutions establishing the Tribunal and of course from the

12 resolutions establishing UNMIK as the interim administration in Kosovo and

13 also under our applicable law, this is reflected in our applicable law.

14 As you know, Your Honour, we have received and you have recognised

15 this, several requests for assistance in the vicinity of about 100, and we

16 have I think established a clear record of constructive cooperation. Yes,

17 we recognise that there are some difficulties and differences in the

18 interpretation of the respective roles and responsibilities, but we do

19 recognise fully the need to allow the Prosecution to evaluate any

20 exculpatory evidentiary material, and where this is indicated, provided

21 certain conditions are satisfied from UNMIK's policy perspective, and that

22 means normally we need to know that a particular witness is indicated to

23 participate in the proceeding, a particular witness has indicated a

24 willingness to cooperate in the process, and this then is evaluated very

25 carefully to see whether we are in a position to provide full disclosure

Page 3878

1 or disclosure under certain conditions that take into account our public

2 policy, responsibilities for safety and security in Kosovo and, of course,

3 the overriding consideration of safety and absence of any intimidation

4 that could arise for witnesses.

5 So we would like to ensure that if we agree to disclosure, we know

6 exactly what the information is needed for and then we try our very best

7 to cooperate to provide as constructive and as broad a response as

8 possible.

9 I believe that we have indicated on various occasions that we are

10 ready to provide redacted versions of statements that are required, where

11 all the conditions are not fully met for full disclosure. And we

12 understand that on occasions the redacted material that we are ready to

13 provide is either considered not to be sufficient or not to be of

14 sufficient evidentiary value. I will ask the acting director of justice

15 maybe to assist in answering the second part of the question as to what

16 are alternatives that we have considered.

17 We -- I know we have in our responses always acknowledged that at

18 the end of the day the ultimate authority rests with the Trial Chamber,

19 and of course the Trial Chamber could indicate by its orders that certain

20 material should be disclosed under the conditions that the Trial Chamber,

21 we trust, would set out. So there's no question about that. But under

22 Rule 70, we do consider that UNMIK as the interim administration authority

23 has the rights -- the same rights as a state and that if it is going to

24 disclose material that it considers could give rise to serious security

25 concerns, these concerns need to be brought to the attention of the Trial

Page 3879

1 Chamber so that they can be properly evaluated before any final decision

2 is taken.

3 So thank you, Your Honour. Perhaps I can ask my colleague

4 Annunziata Ciaravolo to maybe indicate what efforts we have made to meet

5 the needs for disclosure in the absence of the ability to provide full

6 disclosure. Thank you.

7 JUDGE ORIE: Yes.

8 Madam, please proceed.

9 MS. CIARAVOLO: Thank you, Your Honour.

10 I would like to add that generally speaking, as a policy, when we

11 are going to disclose, for example, statements given by witnesses, as a

12 policy with the OTP we indicate that we indicate that we need the consent

13 of the witnesses. And when we get and OTP get the consent, we are ready

14 to provide full disclosure and we did it several times.

15 In the case in question now in presence of the parties we can say

16 that the witnesses didn't consent to the disclosure, so this is the reason

17 why at the moment we have consented only for disclosure with conditions.

18 So if it is necessary to provide additional details, I would suggest

19 probably to be allowed to continue in only -- without the presence of the

20 parties, because our concern still exists considering that the witnesses

21 didn't consent to the full disclosure. Thank you.

22 JUDGE ORIE: Yes. Before we -- before I invite the parties to

23 express themselves on your request for in camera hearing, I'd like to know

24 a bit more what we are actually talking about without disclosing names of

25 witnesses or positions witnesses may have held. Let me try to explain

Page 3880

1 what I mean.

2 Exculpatory material can be in a wide range going from family

3 circumstances of an accused which might lead to a milder sentence up to -

4 and let's just look at what this case is about. I do understand that the

5 16 pages are part of two files, CCIU 2002 00172 and same number but then

6 the last five digits 00080. This Chamber was informed that it deals with

7 the fate of a certain Mr. Skender Kuci and we have received evidence on

8 Mr. Skender Kuci.

9 Now, for example, to just give you an impression of the range of

10 exculpatory material that I could imagine. We do understand that there

11 are some medical reports saying that Mr. Kuci finally was hospitalised

12 with at least problems with the functioning of both kidneys. Now, it

13 could be exculpatory, for example, to have a medical record of previous

14 kidney problems Mr. Kuci may have had because that might change the

15 interpretation of what finally caused the death of Mr. Kuci. Was that a

16 pre-existing condition or was it for other reasons, bad treatment in

17 prison, beatings -- well, it could be anything. But at least that would

18 be exculpatory material which sheds some light on the events.

19 Of course there is other information, other material imaginable,

20 such as a witness saying that he knew the persons who abducted Mr. Kuci

21 and these were certainly not KLA soldiers but FARK soldiers or Serb

22 policemen, I do not know. That's of course a kind of exculpatory material

23 which is totally different in the range from the first example I gave.

24 Now, the Chamber has got no idea whatsoever what the exculpatory material

25 is. And it might be relevant for us to know a bit more about the kind of

Page 3881

1 information before we proceed in excluding parties from this hearing. Is

2 it eye-witness of an abduction? Is it medical information? Is it

3 imprisonment conditions? It could be anything.

4 So before we proceed - and if need be, we could go into private

5 session - the Chamber would like to get at least some general impression

6 of what type of material we are talking about and invites UNMIK or the

7 Prosecution, after having consulted UNMIK, to at least give a glimpse of

8 an impression what we are talking about. Is there any way to do that,

9 whether in private session or in public session?

10 Yes, Mr. Borg-Olivier.

11 MR. BORG-OLIVIER: Thank you, Your Honour.

12 JUDGE HOEPFEL: The other microphone, please, to be switched off.

13 JUDGE ORIE: Yes.

14 MR. BORG-OLIVIER: I mean, in principle we want to be as

15 cooperative and to provide and disclose as much as possible. Let's start

16 from that premise. And the only time that UNMIK has withheld full

17 disclosure, it is based on always the possible threats to a witness or

18 serious security considerations that could arise from disclosure of

19 particular materials. So certainly I don't think that we would not find a

20 way to disclose exculpatory materials of the nature that you described,

21 Your Honour, relating to medical records and the like.

22 I think that we are much, much more concerned where the material

23 that is being sought could implicate individuals, persons who do not wish

24 to be connected with the proceedings, and therefore we have to exercise

25 our responsibilities and indicate caveats which are not insurmountable.

Page 3882

1 We usually indicate the caveats to the Office of the Prosecution, and we

2 always indicate that we are ready to provide alternatives to full

3 disclosure. And maybe we should work harder that -- to ensure that these

4 alternatives nevertheless provide sufficient value for purposes that the

5 information is requiring.

6 But perhaps I can ask Ms. Ciaravolo to explain a little bit more

7 on the types of concerns that the department of justice focuses on. Thank

8 you, Your Honour.

9 JUDGE ORIE: Yes. First of all, I do understand your concerns;

10 there's no problem about that. But at the same time, first of all, of

11 course in most legal systems it's considered a civil obligation to assist

12 in -- as a witness in proceedings. So the starting point is not in most

13 systems whether someone wants to be involved but whether there are --

14 whether the person is needed to do justice. And then second, if there are

15 reasons to make an exception to this general rule. So the starting point

16 might be different. That doesn't say that the final result would -- might

17 be the same, but the starting point of reasoning is certainly different

18 from what you've just said, for us at least.

19 And second, if I ask you to give the type of information, we

20 should clearly distinguish between source and the substance. At this

21 moment I'm looking for substance rather than for source. For example, if

22 it would be medical information, I would at this moment not be interested

23 in whether the general practitioner would have provided information,

24 perhaps even against his duties on an earlier pre-existing kidney

25 condition, or if it is about prison. I'm not interested to know whether

Page 3883

1 the neighbours of a prison or guards in a prison or other detainees in

2 that same prison gave the information, but I'd like to know whether the

3 confidential information is about medical condition, prison conditions,

4 ill-treatment, transportation, whether it is about -- well, whatever. I'm

5 talking about a general impression on the substance of the exculpatory

6 material.

7 Ms. Ciaravolo, if you could respond to this, you're invited to do

8 so. And if you would rather -- of course, it might be a bit difficult for

9 UNMIK to know exactly what is exculpatory because that also depends on the

10 evidence and on the charges before this Chamber. So therefore, if you'd

11 like to consult with Mr. Re and authorise him to give such a general

12 impression, you're invited to do so. I leave it up to you.

13 MS. CIARAVOLO: Thank you, Your Honour. I would like to say that

14 we have two witnesses who gave statements related to information to the

15 witnesses by someone else who saw this other person, saw the incident in

16 question. So these witnesses were not present at the time of the alleged

17 abduction.

18 JUDGE ORIE: Yes.

19 MS. CIARAVOLO: Then we have another witness, and this witness was

20 not a physician and did not conduct any physical examination of the

21 victim, but had only the possibility to see the victim at a certain point.

22 JUDGE HOEPFEL: Microphone.

23 MR. BORG-OLIVIER: Your Honour, perhaps with your permission I

24 could add that in direct response to your comment as to the substance of

25 the material, I can say with confidence that UNMIK would find always to

Page 3884

1 release information relating to substance. That does not necessarily sort

2 of touch source and implicate parties, because as you said, this is of

3 secondary importance. What's important is the substantive value of

4 information that could be exculpatory.

5 As to whether something is exculpatory or not, we first, of

6 course, at UNMIK receive requests for information from the Office of the

7 Prosecutor, and it is in our view their responsibility to extract any

8 possible exculpatory materials from the materials that we provide. And if

9 it is indicated to us that in the view of the Office of the Prosecutor

10 there may be exculpatory material, that does not necessarily mean that we

11 are in agreement that what we are about to provide is, in fact,

12 exculpatory. And we must leave that for further evaluation, including

13 from -- by the Trial Chamber, and we have expressed our readiness to make

14 available information and then we leave it to the Court to make a final

15 determination as to whether material is, in fact, exculpatory. We are not

16 always convinced with the indications that material may be -- is

17 potentially exculpatory. Thank you.

18 JUDGE ORIE: Yes. Of course, that's the primary responsibility of

19 the Prosecution. The Rules of Procedure and Evidence impose some

20 obligations on the Prosecution how to act if there's exculpatory

21 material. So it's finally -- it's the assessment, of course to be

22 verified by the Chamber if need be, it's the assessment of the

23 Prosecution, first of all, to identify material as exculpatory.

24 So I do understand now we are talking about witnesses who gave

25 hearsay evidence, hearsay evidence of a third person who has observed the

Page 3885

1 abduction. Is it limited to the abduction or is it more widely on what

2 happened after the abduction?

3 MS. CIARAVOLO: I would like to maybe just clarify my previous

4 statement. Regarding the person who was present at the incident, the

5 statement given by this witness were unconditionally released. Just for

6 clarification. So the hearsay --

7 JUDGE ORIE: So the -- the substance --

8 MS. CIARAVOLO: The substance.

9 JUDGE ORIE: -- of the hearsay information --

10 MS. CIARAVOLO: Exactly.

11 JUDGE ORIE: -- has been released.

12 MS. CIARAVOLO: Has been completely released, because the witness

13 present agreed and the statements were unconditionally released.

14 JUDGE ORIE: So the only thing we are talking about is that other

15 witnesses who confirm --

16 MS. CIARAVOLO: Exactly.

17 JUDGE ORIE: -- the fact -- well, do not confirm but that other

18 witnesses who have stated that the witness who observed the abduction,

19 which is available material, that this witness had told them that he

20 observed it.

21 MS. CIARAVOLO: Exactly.

22 JUDGE ORIE: Then of course the next issue would be whether the

23 information these two witnesses received from the third person who

24 observed the abduction, whether there's any inconsistency between what

25 this witness told them and what we find in the statement of that witness.

Page 3886

1 Therefore, I would be inclined to seek a solution in the following

2 direction; that is, to perhaps have disclosed the substance of the hearsay

3 evidence to the extent where it states what these witnesses heard from the

4 third person who observed the abduction and to see whether there's any

5 inconsistency. If there's any inconsistency, then of course this might

6 shed some light on the probative value, on the reliability of the

7 information the witness gave in a statement which is available to the

8 parties.

9 Perhaps we leave it for a second in relation to this material to

10 this, because I'm looking at the Defence whether the Defence would

11 consider that a solution might be at least provisionally, initially sought

12 in that direction. And I saw that there was some consultation between

13 Defence counsel.

14 MR. EMMERSON: I was, in fact, having a word with Mr. Guy-Smith

15 primarily on the procedural aspect; in other words, whether it would and

16 in what circumstances it would be appropriate to -- to consent to the

17 suggestion that had been made that the Trial Chamber be addressed in the

18 absence of the parties, and I have some submissions at the appropriate

19 moment to make in that direction. But I don't understand Your Honour to

20 be asking me that question at this --

21 JUDGE ORIE: No, not at this moment. As you may have noticed, the

22 Chamber was not very much inclined to immediately --

23 MR. EMMERSON: Yes.

24 JUDGE ORIE: -- respond to that suggestion.

25 MR. EMMERSON: Yes. And the short response to the question would

Page 3887

1 the substance be of advantage to the parties is: Plainly it would be.

2 The more information that one can have, the better position the parties

3 will be in to make informed submissions about relevance and probative

4 value. And indeed a situation could arise, one can imagine and I've seen

5 it in other contexts, where the substance of the information itself,

6 without the identification of the provider, can become part of the record

7 with the Tribunal making certain assumptions about the probative weight of

8 it. And it can be deployed, in certain circumstances, without necessarily

9 full identification having been properly explored.

10 But clearly if we're proceeding in stages to disclose to the

11 Defence at this stage the substance would be of very considerable

12 assistance, providing one knows in that particular instance who the maker

13 of the statement to the person who is the author of the UNMIK statement

14 was. In other words, in order to identify the possibility of

15 inconsistency one has to know which eye-witness provided the account to

16 the two hearsay witnesses in order to be able to compare it with what we

17 understand to be a statement that has already been disclosed from an

18 eye-witness. But that is, I wouldn't have thought, likely to represent a

19 problem.

20 JUDGE ORIE: Yes. So therefore I understand there are two

21 important elements. The first is to identify what is the -- who is the

22 third person who observed the abduction, so in order to enable you to

23 compare if the substance of the hearsay statement is released.

24 MR. EMMERSON: Precisely.

25 JUDGE ORIE: Yes.

Page 3888

1 MR. EMMERSON: In that particular instance -- there is a more

2 general proposition that ought perhaps just to be recorded at this point,

3 which is, there's been some discussion about whether material is or is not

4 exculpatory, what the test is, whose responsibility it is, and so forth.

5 I do think it's important to record at this stage that not only in respect

6 of these requests, but more generally in respect of any specific requests

7 made by the Defence which are in fact requests made under 66(B) rather

8 than 68, the threshold test must be relevance. If material is relevant,

9 then it's prima facie disclosable in the absence of a strong public

10 interest against its disclosure. And really the question of whether it's

11 exculpatory or not or how exculpatory it is only becomes material when a

12 Court is called upon to perform a balance between the public interest in

13 disclosure and the public interest in nondisclosure.

14 And deciding whether material is exculpatory or not or, indeed,

15 deciding how exculpatory it is is not a process that UNMIK can perform,

16 because they don't know what lines of cross-examination we may wish to

17 pursue; neither, with the greatest of respect, is it a function that the

18 Prosecution can perform on our behalf. The only people who are properly

19 fit to decide or at least to assess in the first instance potential value

20 are the Defence and then ultimately the Trial Chamber and to make that

21 evaluation.

22 JUDGE ORIE: Mr. Emmerson, that's fine in general terms.

23 MR. EMMERSON: Yes.

24 JUDGE ORIE: But we are faced here with a very specific

25 situation --

Page 3889

1 MR. EMMERSON: Precisely.

2 JUDGE ORIE: -- where Rule 70 leaves it to the provider of the

3 material to say no, and the only issue is whether the Chamber is competent

4 to; and if so, should give an order that Rule 68 would prevail. Against

5 the text of Rule 68 --

6 MR. EMMERSON: Yes.

7 JUDGE ORIE: -- which starts saying --

8 MR. EMMERSON: "Subject to Rule 70."

9 JUDGE ORIE: "Subject to Rule 70." So I would like to focus on

10 that issue because that's the central issue raised in the January motion.

11 MR. EMMERSON: And may I say I fully accept that that creates a

12 balancing exercise which is circumscribed, but nonetheless when the

13 balancing exercise comes to be performed, for the Trial Chamber to be able

14 to decide how valuable a piece of material may be, which is obviously

15 critical to deciding whether a Rule 70 document should be the subject of

16 an order, assuming the Trial Chamber has power to order its disclosure,

17 how useful it is to the Defence is clearly one of the most important

18 factors that the Trial Chamber will have to consider.

19 And for that to occur, the Trial Chamber must be equipped with

20 informed submissions from the Defence, and they cannot be equipped with

21 informed submissions from the Defence about how useful a document may be

22 if the parties are excluded from the process at any stage. That was

23 really the point. So some solution would have to be devised to enable

24 informed submissions to be made by the Defence as to the weight or

25 potential value of Rule 70 material, which raises the balancing exercise.

Page 3890

1 JUDGE ORIE: Yes. Mr. Emmerson, I was focusing at this moment

2 mainly on trying to find a solution which would meet both UNMIK concerns

3 and Defence concerns, and you already started a bit giving the general

4 context and the general matters. As a matter of fact, I, not without

5 reason, started not on the abstract level but first on the practical level

6 because if -- of course, in the back of the minds of the Chamber - and the

7 Chamber has thoroughly discussed the matter - all the balancing exercises,

8 all the interests involved, but the Chamber tries to focus at this moment

9 to see whether we can resolve the matter, as I said at the beginning, to

10 be informed and to seek a resolution. If no resolution could be found

11 here, then of course the Chamber will have to consider how to finally

12 decide on the motion.

13 MR. EMMERSON: I could simply have said the suggestion is a

14 helpful one and, yes, I would like to see the substance.

15 JUDGE ORIE: Yes.

16 Mr. Guy-Smith.

17 MR. GUY-SMITH: Yes, I'm going to at this point forego discussion

18 of the law, and I think there is some well-settled law in certain of these

19 areas, and suggest that the Chamber's suggestion is the one that we should

20 follow at this time because I think there is a practical solution therein.

21 JUDGE ORIE: Yes.

22 Then -- so therefore, Mr. Re, you heard the Defence. We now have

23 at least some indication of at least a part of it because we have dealt

24 only with the first issue, that is the two hearsay witnesses, where a

25 provisional solution might be found by, first of all, informing the

Page 3891

1 Defence on the substance of the hearsay without giving any sources; it's

2 not Witness A or Witness B or Witness C, but there are two witnesses

3 saying that they were told by a third person, who observed the abduction,

4 the following. And then it's mainly the substance, the content of what he

5 states or the two witnesses state they've heard from this person. That's

6 one portion.

7 The second is that the Defence is informed about the source of

8 knowledge for these two hearsay witnesses so that they can compare the

9 statement given by that witness and the statement about receiving

10 information from that witness by the two unidentified witnesses. Would

11 that for the time being be the first step in reaching a solution? Mr. Re,

12 you have been silent until now.

13 MR. RE: Well, yes. I just wish to make a comment here about the

14 submissions of UNMIK to date. There are two matters with which the

15 Prosecution -- we're not quite sure about the accuracy of part of the

16 submissions. The first one is at page 5 where Mr. Borg-Olivier referred

17 to UNMIK - I'll just find the passage - where he said: "I believe that we

18 have indicated on various occasions that we are ready to provide redacted

19 versions of statements that are required" --

20 JUDGE ORIE: Yes. To keep matters short, it's my memory that at

21 some point the Chamber was informed that there was a major concern about

22 giving redacted statements because it would still identify the witnesses.

23 MR. RE: Yes, that's correct. The only point I wish to make there

24 is that UNMIK have said that they have offered -- or were ready to provide

25 redacted statements. And if I could just refer the Trial Chamber to our

Page 3892

1 filing of the 17th of November, 2005, and the provisional release

2 litigation, paragraph 44, where we said we had actually offered that to

3 UNMIK, but UNMIK had declined our invitation to do it in that manner.

4 JUDGE ORIE: Okay. Let's -- that's the past, I would say. And if

5 there's any need to further discuss whether the communication up till this

6 very moment was not perfect, then I gladly leave it in the hands of those

7 who participated in that communication to express their views, not

8 necessarily in this courtroom. But I do understand that you do not fully

9 agree with the presentation given by Mr. Borg-Olivier on the history of

10 the matter.

11 At this moment I'm not saying that it lacks all relevance for this

12 Chamber, but we are not focusing on it at this moment.

13 MR. RE: What we are focusing on - and I of course take Your

14 Honour's direction here - is the substance of what is contained in the

15 files which we have. Mr. Borg-Olivier says there are three -- two

16 statements. Our understanding, based on our requests and correspondences,

17 that there are three statements --

18 JUDGE ORIE: Yes. While we have -- I only dealt with the first

19 issue, that is two unidentified witnesses gave a statement, a hearsay

20 statement, on what a third person said. But we have another that is

21 someone who saw the victim. We have not dealt with that yet, if that's

22 the third. If not, then --

23 MR. RE: No. What I'm trying to come to is I'm not quite sure who

24 they're talking about. If they can give me the names on a piece of paper,

25 then I'll know if their information is the same as ours. The reason is

Page 3893

1 this -- if Your Honour will let me say this, the reason is the information

2 I have in the file is that it is not hearsay. There are two witnesses and

3 I don't think we've ever said they are hearsay witnesses. So there

4 appears to be a discrepancy there.

5 JUDGE ORIE: There seems to be some confusion which --

6 MR. RE: If they can put the names on a piece of paper and just

7 hand them to me, I can work out straight away who they're talking about

8 and --

9 JUDGE ORIE: Yes. Ms. Ciaravolo, would that be a possibility?

10 MS. CIARAVOLO: Yes, of course.

11 JUDGE ORIE: Okay. Mr. Guy-Smith.

12 MR. GUY-SMITH: In the interim and really quite briefly, since

13 Mr. Re has raised the issue of provisional release, and I quite frankly

14 don't want to get off on a point of law at this time because I think we're

15 trying to at least for these purposes on this issue reach a practical

16 solution.

17 The use of that material in the provisional release does raise

18 some other legal issues with regard to what, if any, protections it has,

19 having been initially supplied under Rule 70. And I'm just making a

20 footnote of that for the moment because if that becomes an issue at a

21 later point in time, depending on how much time we have for these

22 proceedings, the Chamber may need to address that.

23 JUDGE ORIE: Yes. And do we need at this moment -- is the

24 information of UNMIK relevant for that issue?

25 MR. GUY-SMITH: Only because it -- only -- it may well be, and

Page 3894

1 this is really an issue that I think more appropriately might be dealt

2 with by Mr. Harvey at a point in time when he addresses the Chamber with

3 regard to the provision of material as it related to the provisional

4 release by UNMIK. It's an entirely separate issue, but since it was

5 raised, I just want to make sure that the Court is aware that there is a--

6 JUDGE ORIE: Yes.

7 MR. GUY-SMITH: It's actually a tertiary legal issue, which we

8 don't need to get into it at this point but I don't want to lose sight of

9 it in the event it becomes of some moment.

10 JUDGE ORIE: That brings me to some thoughts which I will express

11 at a later stage.

12 Mr. Re, are you talking about the same statements as UNMIK did?

13 MR. RE: Yes, if I can correct myself it does appear to be

14 hearsay. I just misread something.

15 JUDGE ORIE: Okay.

16 MR. RE: Sorry.

17 JUDGE ORIE: So that issue is resolved.

18 MR. RE: So we are talking about the same thing. And the

19 Prosecution doesn't object to the suggestion the Trial Chamber --

20 JUDGE ORIE: Okay. So the suggestion is -- just dealing with the

21 first piece of information, is that the substance of the hearsay, without

22 saying who said it, but at least the statement to the extent it relates

23 the information these hearsay witnesses received from the third persons

24 are disclosed to the Defence, and also to the extent that does not yet

25 appear clearly from those statements who the witness is who personally

Page 3895

1 observed the abduction. So that there is impossibility to compare.

2 MR. BORG-OLIVIER: Your Honour, I think that the suggestion is not

3 problematic at all for UNMIK. If we could propose an appropriate

4 redaction, that meets those requirements.

5 JUDGE ORIE: Yes. And we'll then see once this has been disclosed

6 whether there were any further concerns. I hardly could imagine that the

7 Defence would have no further concerns, but then of course the next step

8 would be to consider whether there needs additional steps.

9 Now I'd like to move to the second piece of information where you

10 said there is a witness statement of a person who saw the victim. Now,

11 relying on -- relying on the evidence we've heard until now and also

12 looking at the indictment, it might be relevant to know whether the victim

13 was seen by the witness when he was still alive or after he died and

14 whether he was seen only after he had died or only when still alive. Is

15 that -- is this a kind of information you could provide to the Chamber?

16 MR. BORG-OLIVIER: Yes, Your Honour. Again, I think that this

17 could be addressed and can be satisfactory to a redaction of the

18 information to be disclosed.

19 JUDGE ORIE: Yes. But could you inform us on whether -- I mean,

20 what are we talking about, I mean, if it would have been his -- well,

21 let's say the witness could be -- one of his children stating about his

22 physical condition after the body was delivered to the family, that's of

23 course totally different from someone who sees the condition of the victim

24 when transported --

25 MR. BORG-OLIVIER: Sure.

Page 3896

1 JUDGE ORIE: -- from a detention facility to a hospital, for

2 example. Could you -- is there any way in general terms to give a bit

3 more information about --

4 MR. BORG-OLIVIER: I'll ask Ms. Ciaravolo to be maybe specific. I

5 don't wish to get into the actual --

6 JUDGE ORIE: Yes.

7 MR. BORG-OLIVIER: -- evidence.

8 JUDGE ORIE: And if there's need, Ms. Ciaravolo, to go into

9 private session, you'll let me know.

10 MS. CIARAVOLO: Thank you, Your Honour. We can say that this

11 person was at the hospital when the victim was still alive.

12 JUDGE ORIE: Yes. And also at the hospital when the victim had

13 died?

14 MS. CIARAVOLO: This, I can't say. I don't -- she later heard

15 that he died.

16 JUDGE ORIE: Yes.

17 MS. CIARAVOLO: She or he.

18 JUDGE ORIE: Yes. I can imagine, looking at material which is not

19 in evidence but which was in the bundle the Chamber received recently,

20 that there would be a need to compare the medical information the Defence

21 has given to the Chamber, these were reports about the possible causes of

22 this kidney failure, with this information. I do not know at this moment

23 to what extent that material would be exculpatory, but here again the

24 substance of the information, without saying whether it was a visitor or a

25 nurse or a doctor, at the same time of course, sometimes the Chamber is

Page 3897

1 aware that if it comes to the substance of information, if it is described

2 in rather medical terms, then you could expect that there was a medical

3 professional involved. So to that extent it would identify at least some

4 of the -- would give some information about --

5 MR. EMMERSON: May I just add --

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: -- on that one point. Your Honour should be

8 aware - and I'm sure UNMIK are aware - that in the file in addition to the

9 statement and medical report that Your Honours have seen, there is another

10 statement and medical report from another doctor less directly involved,

11 which is essentially consistent with the one that Your Honours have seen.

12 But in that second statement, there is a list of the names of all of the

13 medical staff. I'm simply saying that because it is obviously relevant if

14 names are in issue, because as soon as one were able to identify the -- as

15 soon as the capacity in which a member of the medical team involved is

16 revealed, that is -- will come in substance to the revelation of the

17 identity because the list is already there.

18 JUDGE ORIE: Yes. The material you're talking about, is that all

19 material disclosed by the Prosecution to the Defence or is there any

20 material generated by the Defence itself?

21 MR. EMMERSON: The answer to that question comes in two stages. I

22 think the answer that Your Honour needs is the list of names comes from

23 material disclosed by the Prosecution from the UNMIK file.

24 JUDGE ORIE: Yes.

25 Again going for a practical solution, would -- as a first step,

Page 3898

1 would it meet some of the concerns of the Defence if the substance of the

2 information provided by a person who has seen the victim in the hospital

3 would be disclosed?

4 MR. EMMERSON: Yes.

5 MR. GUY-SMITH: Yes.

6 JUDGE ORIE: Yes.

7 Mr. Harvey, unisono yes.

8 MR. HARVEY: I continue to nod.

9 JUDGE ORIE: Yes, you continue to nod.

10 Mr. Re, any comment on --

11 MR. RE: It's not our file. We don't object to that, no.

12 JUDGE ORIE: No, no. I do -- but nevertheless you are a

13 participant in these proceedings as well, so I'd like to hear your opinion

14 about the matter.

15 Would it be practical to -- I don't know how much time it takes

16 to -- perhaps with a marker to get rid of all the information and then

17 perhaps just show it to the Defence for the time being so that we could

18 use 25 minutes to see how far we come and see whether any additional steps

19 are needed?

20 That brings me to another matter which I'd like to raise and that

21 is direct communication between UNMIK and Defence. I do understand that

22 the communication, direct communication, between Defence and UNMIK

23 sometimes finds an obstacle in the preference of UNMIK to deal with the

24 Defence rather through the Prosecution. I would like to invite UNMIK to

25 reconsider whether this indirect communication is always the exclusively

Page 3899

1 appropriate way of dealing with parties in these proceedings.

2 And just perhaps to give it a start, if you have provisionally

3 redacted these statements, I would invite you to meet with the Defence, to

4 show it to them, and to see whether at that moment there's any need to

5 seek further clarifications, not to engage in a real discussion on the

6 matter. But, for example, if the Defence would say, I see a redacted page

7 2 and a redacted page 4, is there any page 3? Is it not relevant, or are

8 you just -- have you just forgotten to look at page 3 or is the numbering

9 in this file incomplete? These kind of practical communication often

10 helps a lot in resolving matters. So perhaps in this relatively safe

11 environment you could perhaps try it out once whether direct communication

12 with lead counsel would favour finding of a solution.

13 MR. BORG-OLIVIER: Your Honour, your wise comments are duly noted.

14 JUDGE ORIE: Yes.

15 MR. BORG-OLIVIER: And I assure you that starting from the end of

16 your remarks, UNMIK's position is not exclusively to deal with the Office

17 of the Prosecutor alone. As a matter of policy - and I think this is

18 appreciated and understood - as an interim administration authority we

19 must be sure that we are always dealing with an official process that has

20 the full cognizance of the Tribunal. And so as a matter of policy, we

21 state that we deal in matters relating to the ICTY with the competent ICTY

22 authorities, and that is the registry, it is the Chamber, and it is the

23 OTP. And we don't respond directly, as a matter of policy, to Defence

24 counsel that come from all angles and with issues that might not be in the

25 best interest of anyone to go forward with before getting a view from the

Page 3900

1 competent authorities of ICTY that this is something that is necessary and

2 useful that we should cooperate with.

3 And we have had communications with Defence counsel on various

4 occasions, and in the manner that you have described, we certainly don't

5 see a problem after the initial issues of principle have been determined.

6 Thereafter we could still -- we could have definitely informal exchanges

7 with Defence on what we have been able to disclose, for instance. If we

8 disclose a redacted statement and there are questions on the redaction, I

9 don't see that there should be any difficulty in clarifications, direct

10 clarifications being exchanged between Defence and UNMIK.

11 But it is our very firm policy and -- that we do not respond

12 directly or disclose directly to Defence counsel. We have up to now

13 adhered to a policy of insisting that we receive requests for assistance

14 from the competent organs of the ICTY; we respond; and then we are ready

15 to enter into a dialogue as to how much of that can be disclosed if it's

16 necessary, if any clarifications are required. I don't know if I've been

17 clear enough.

18 JUDGE ORIE: You've been clear enough. It might need, perhaps,

19 some further discussions on the role of Defence and Prosecution as parties

20 in proceedings, especially in these proceedings with an adversarial

21 character where, unlike in many non-adversarial systems, the Defence has a

22 duty and is expected to find its own material, and where it might not

23 always be fair that when the Defence is seeking some material, to first

24 give it in the hands of the Prosecution, whereas if the Prosecution seeks

25 some material, it does not pass the hands of the Defence. So perhaps, but

Page 3901

1 not at this moment, an exchange of views on the characteristics of the

2 adversarial proceedings might be useful to see whether your policy is --

3 is in every respect fair to all parties in these proceedings. But we are

4 not engaging in that discussion at this moment, but since you mentioned

5 it, I give -- and I say not the view of the Chamber but my personal view

6 on the matter you just raised.

7 One second, please.

8 [Trial Chamber and legal officer confer]

9 JUDGE ORIE: Mr. Guy-Smith.

10 MR. GUY-SMITH: Since that issue has been raised, I hope that we

11 will be able to come to some form of resolution because of the fact that

12 at this point in time the numbers of requests that are outstanding are

13 legion and it's quite clear to me that the position of UNMIK has not

14 deviated from its February 12th, 2007, position, which is the obligation

15 to disclose evidence belongs exclusively to the ICTY Prosecutor. I hope

16 that by the end of today's proceedings we will be able to reach some form

17 of resolution on that.

18 JUDGE ORIE: First of all, Mr. Guy-Smith, this Chamber is not in

19 the position to dictate the policy of UNMIK. Of course in an exchange of

20 views, whether in the context of this case or whether in more general

21 context, might assist in considering, as I said before, whether this

22 policy in every respect is fair to all parties in these proceedings, that

23 might be the positive approach to what you consider to be a policy problem

24 and what UNMIK considers policy. And whether that would change or not

25 change, the policy is not the primary concern of this Chamber; but of

Page 3902

1 course, if the Defence seeks information where the Prosecution would not

2 support such a request, of course the Defence can -- but then on an ad hoc

3 basis, invite the Chamber to give an order to UNMIK to disclose certain

4 material to the Defence.

5 MR. GUY-SMITH: I understand that and am attempting to do

6 everything to avoid that situation because the number of orders that we

7 would be requesting thus far, based upon the position that the Office of

8 the Prosecutor has taken, is such that we will reach that position if we

9 don't - and I hope that we do come to some form of accord - we will reach

10 that position very quickly.

11 JUDGE ORIE: Yes. Perhaps you will, since UNMIK is there, a

12 conversation on the matter might be possible, even using the presence of

13 the UNMIK representatives.

14 Mr. Borg-Olivier.

15 MR. BORG-OLIVIER: Thank you, Your Honour. Just on a point about

16 the February 12th response, I mean, that response is in the context of

17 information provided to the OTP. And in respect of that information,

18 there's no doubt in our minds that it is for the OTP to make its

19 evaluations and decide what it should disclose to the Defence. But there

20 are other situations where, clearly, there needs to be some involvement

21 between the Defence and the material; and this we would certainly be open

22 to any arrangement that this Tribunal would indicate that involved perhaps

23 the Tribunal, through the Chamber. If the Chamber, as is being done in

24 this particular case, we have seen the wisdom of referring the matter to

25 the Chamber and the Chamber is giving us guidance as to how to overcome an

Page 3903

1 obstacle that overcomes difficulties that the parties legitimately have

2 from their different perspectives. Thank you, sir.

3 JUDGE ORIE: If that would -- the policy of this Chamber is that

4 we are always trying to see whether the parties can resolve their problems

5 themselves; and only if that's impossible, to ask the Chamber to

6 intervene.

7 Let's not -- as I said in the beginning, we are trying to find

8 practical solutions rather than to have legal debates on, although of

9 course all being lawyers we like legal debates but we'd rather first

10 resolve our problems that come up in our efforts to provide a fair trial

11 to the accused.

12 MR. GUY-SMITH: The -- I'm only rising to correct the

13 representation just made. The letter that I alluded to was in direct

14 response to two requests that I made specifically to UNMIK that I had not

15 made to the Office of the Prosecutor because I was informed in one

16 instance that the Office of the Prosecutor would not be in a position to

17 do so; and in the other instance it was a situation --

18 JUDGE ORIE: Mr. Guy-Smith, I see that you have concern a bit

19 similar to a concern expressed by Mr. Re previously, and I would say, as I

20 did encourage further direct communication to resolve all

21 misunderstandings, misinterpretations, et cetera, I again encourage you to

22 engage in direct conversations to see whether you can resolve these

23 matters.

24 Mr. Re.

25 MR. GUY-SMITH: I'm happy to do so.

Page 3904

1 MR. RE: Maybe as a proposal or a compromise, the Prosecution - I

2 just place this on the record - we do not view ourselves and we are not --

3 our role is not that of a collection agency for the Defence and we're

4 not -- we will not act as the Defence's agent in collecting information

5 from [sic] the Defence. We make that quite clear, we have no obligation

6 to do so. There are some cases in which we have made requests of UNMIK

7 when the Defence has asked us to do so. That has been on a case-by-case

8 basis where we have considered it to be in the interests of justice, as we

9 see it, to do so. Now, we hear what UNMIK is saying here in relation to

10 what they see as the official organs of the Tribunal. If it's not us and

11 they're not going to communicate with the Defence and we can't do anything

12 about that, the compromise solution may be through a third party, possibly

13 the registry. If they direct their requests to the registry -- the

14 Defence requests them to the registry and the registry to UNMIK and it

15 goes back through the registry to UNMIK to the Defence, it keeps the

16 Prosecution out of it, would allay Your Honour's concerns about the

17 fairness of the process and the two parties would be communicating without

18 involving the OTP.

19 JUDGE ORIE: I see there are all possible thoughts on how to

20 resolve the matter, and the Chamber is confident that at least the first

21 problems might be resolved in the half an hour we'll take for a break.

22 The Chamber is not ordering who should provide coffee to who, but we would

23 like to see you back at ten minutes to 11.00.

24 --- Recess taken at 10.19 a.m.

25 --- On resuming at 11.16 a.m.

Page 3905

1 JUDGE ORIE: The Chamber would like to hear the result of the

2 meeting between Defence and UNMIK during the break, whether it has at

3 least initially resolved the outstanding issue of information as we

4 discussed before the break.

5 Mr. Guy-Smith, yes.

6 MR. GUY-SMITH: First of all, I would, on behalf of the Defence,

7 and I think really on behalf of all parties, thank the Chamber for the

8 suggestions made and the invitation for us to have these discussions

9 because I think they've been really quite fruitful and I believe that we

10 at least at the outset have come up with a solution. There may be a point

11 or two which needs to be ironed out, but in principle without any doubts I

12 think it would be fair to say that we have come up with an accord that

13 should work for all parties.

14 Initially with regard to the issue of the statements that were the

15 first part of the subject of the Court, we have received redacted copies

16 of those statements. They are in the process of being reviewed at this

17 point in time, and I think we'll be able to very shortly report back to

18 the Chamber with regard to whether or not we will need any further

19 information or not. I can take it no further than that, only because they

20 are being reviewed by all parties at this point.

21 With regard to the second issue, which is the issue of requests

22 that the Defence might need to make or will be making in terms of

23 information that is within the possession, custody, and control of UNMIK

24 in the nature of investigative files and/or exculpatory information, we

25 have, I think it would be fair to say, have agreed in principle, that we -

Page 3906

1 meaning the Defence - at this time can directly contact a designated

2 member of UNMIK with regard to a request for that information which we

3 deem to be relevant for the adequate and proper preparation of the defence

4 of our clients.

5 UNMIK, I believe, is in a position where they will be able to

6 respond to those requests; however, they have made a request that there is

7 some interim, either approval or noting by some agency or organ of the

8 Tribunal that indicates that the requests are bona fide and kosher, that

9 perhaps is a way of putting it. How precisely to achieve that particular

10 part of the process has yet to be ironed out and perhaps the Chamber might

11 have some ideas. I think that I've fairly indicated. There is an area

12 that might arise where certain information is information which UNMIK

13 believes should be kept confidential, but there are ways of alerting both

14 the Defence as well as the Office of the Prosecutor to any of those

15 situations.

16 JUDGE ORIE: Thank you, Mr. Guy-Smith.

17 Mr. Borg-Olivier, first of all, could you confirm that

18 Mr. Guy-Smith gave a fair reflection of your conversation.

19 MR. BORG-OLIVIER: Thank you, Your Honour. Yes, by and large, the

20 account is fair and comprehensive.

21 JUDGE ORIE: Yes. And then he also announced that UNMIK might

22 have some, as he said, a kind of an approval or at least a notice that, as

23 Mr. Guy-Smith said, the request was bona fide or kosher. Could you

24 explain what UNMIK would like in this respect and we might then discuss

25 this issue to see whether we can reach a conclusion on that as well.

Page 3907

1 MR. BORG-OLIVIER: Thank you, Your Honour. Yes, we had fruitful

2 discussions during the break, and UNMIK, as I said earlier, has

3 consistently adhered to a policy of requiring some involvement or

4 oversight by the Tribunal authorities of any action that is presented to

5 UNMIK for some kind of response. And in keeping with this, we recognise

6 that there are times we need to help the Defence, and we want to simply be

7 sure that a request coming to UNMIK has at least the official oversight of

8 the ICTY competent authorities. This could be the registry, it could be

9 the Chamber that designates a focal point. All that is needed that there

10 be some kind of stamp, official stamp, showing that this has passed

11 through an official office, and then we know that if there's any reason

12 why the Tribunal does not want us to act on it, then we wouldn't. If

13 there is no objection sort of then we would proceed to deal with it as a

14 request that the Tribunal knows about and that we feel we should respond

15 to. Thank you.

16 JUDGE ORIE: If I may ask a few questions in that respect. You

17 said it has passed through an official office and then we know if there's

18 any reason why the Tribunal does not want us to act on it, then we

19 wouldn't -- if there is no objection, then we would proceed. What would

20 you expect, whether it's the registry or the Chamber, for us -- what would

21 be our considerations or what would be our criteria for saying this should

22 not reacted to or not. Because in the adversarial system the Chamber -

23 but the same would be true for the registry - is usually not interfering

24 or even seeking information on how the parties prepare their case, how

25 they do their discovery. So therefore, if I would have to look at it,

Page 3908

1 should I close my eyes and say "approved," or what do you expect us, apart

2 from the -- of course it's always nice to have a stamp on a document, but

3 what do you expect us to do?

4 MR. BORG-OLIVIER: Well, maybe I went too far, Your Honour, in

5 saying if there is any objection it should be indicated. Maybe one should

6 not go down that route and simply acknowledge that, yes, in the

7 adversarial system, really this is not something that should be sort of

8 looked into more than simply to acknowledge that it has passed through an

9 official channel.

10 JUDGE ORIE: Yes.

11 MR. BORG-OLIVIER: And if we have, let's say, a stamp, then we

12 know that this has been officially noted and recorded and we have it --

13 and we're not the only ones that have it.

14 JUDGE ORIE: Okay.

15 MR. BORG-OLIVIER: And if, for instance, a request has been made

16 that has been covered amply through other disclosures, perhaps either we

17 could get some guidance and assistance that this is the case or --

18 JUDGE ORIE: Yes. But this Chamber is not aware of disclosure. I

19 mean, the parties have disclosure obligations. The Chamber usually asks

20 the parties, Are you happy -- is the Defence happy with the way the

21 Prosecution has fulfilled its disclosure obligations? If they say yes, we

22 are not going to ask. Of course if it comes to trial - but that's of

23 course a different matter - if it will be presented as evidence then of

24 course it reaches the Chamber, but all that material reviewed by Defence

25 or Prosecution which never comes to our eyes, we are unaware of it. And

Page 3909

1 in the system, it's normal that we are unaware of it. But I do understand

2 some concern, for example, that if there would later be any debate about

3 whether a request has been made. Let me also see whether there's a

4 practical solution. If a party would make a request, first send it to the

5 Legal Officer of the Chamber, the Legal Officer being authorised by the

6 Chamber to sign that he has received a copy which is to be stored until

7 there will be any dispute about this request, would that do?

8 MR. BORG-OLIVIER: Yes.

9 JUDGE ORIE: Yes.

10 May I ask parties, especially the Defence, whether that could

11 resolve the matter. Of course it would -- it would need your confidence

12 that the Chamber is not going to review in detail -- of course we might

13 ask our Legal Officers, How many requests were there last month? 25?

14 100? 200? But the Chamber of course sees the concerns of UNMIK, that at

15 least it's recorded somewhere, apart from in your files. And in a

16 fundamental discussion, it might be that we would take the position that

17 storing the original in the files of the Defence would be just as good,

18 but if the Defence would not oppose against this solution, then we might

19 consider it.

20 MR. GUY-SMITH: I don't oppose against the solution because I

21 think that the main effect of it will be to achieve that which is most

22 important to us, which is the receipt of the information, and I am

23 confident that the Chamber has more than enough work in front of it that

24 it doesn't need to be going through necessarily the requests that are

25 being made.

Page 3910

1 JUDGE ORIE: And it's clear for UNMIK that the Chamber will not

2 review whether we find it serious or not. If there's any reason for UNMIK

3 why they would not be willing to provide the information, of course I take

4 it that the next step from the Defence would be to -- either to ask the

5 Chamber to make an invitation, but then at least we have differentiated

6 between those cases where there are special concerns by UNMIK which causes

7 UNMIK not to be cooperative at that instance, and then of course we could,

8 upon an application by the Defence, we could consider whether there's any

9 reason to send you an invitation, having heard both Defence and UNMIK,

10 whether there's any reason to apply Rule 54 bis, which is a possibility

11 for a state to say, We would like to address the Chamber in camera because

12 we have very special concerns that should not be brought to the attention,

13 then you're even entitled under the Rules to bring your own interpreters

14 so that even not by the interpreters any information could leak. It's

15 really then just the state or, in this case, UNMIK.

16 If that practical solution, which your request for a rubber stamp

17 is not acknowledged as being valid but is accepted as a practical solution

18 to meet your concerns, it doesn't say anything about whether the Chamber

19 considers this necessary and whether your obligation under Article 29 of

20 the Statute and whether the presumption in Rule 54 bis that the parties

21 just directly deal with the entity concerned, whether we would share your

22 views that such a stamp would be needed. There has been quite some case

23 law in this respect, not only in relation to states but also in relation

24 to NATO or the European Monitoring Mission which all start from the

25 assumption that reasonable requests by parties, whether Defence or

Page 3911

1 Prosecution, as a principle should be met. But I'd like to hear from

2 Mr. Harvey and Mr. Emmerson whether they take a similar position as

3 Mr. Guy-Smith.

4 MR. EMMERSON: I do.

5 MR. HARVEY: So do I, Your Honour.

6 JUDGE ORIE: Then this matter having been practically resolved.

7 This also -- Mr. Guy-Smith, the remaining issue on the agenda was

8 outstanding requests. Could we assume on the basis of the information the

9 Chamber received that the Chamber is aware of these requests and that to

10 the extent UNMIK has not yet responded, that a response will be given. I

11 mean, is my word as a rubber stamp in this meeting would serve the same

12 purpose, I would say.

13 MR. BORG-OLIVIER: Thank you very much, Your Honour. I just want

14 to clarify that the reference to the rubber stamp or to any kind of

15 initialing was intended to give UNMIK comfort that some official channel

16 that is aware of this happening, because otherwise we open ourselves up to

17 numerous requests from the general public that are not related, for

18 instance, to a proceeding. So the fact that there is any annotation is

19 useful for recording purposes and is useful as a minimum screen, and

20 that's all we're asking for, and the rest is fine, understood.

21 On the issue of the pending statements, you have our word, Your

22 Honour, that UNMIK devotes priority to these requests and if there's the

23 required information specificity, we are able to address them in -- as

24 quickly as we possibly can. And you have our commitment that these will

25 be addressed very, very promptly in the coming days.

Page 3912

1 JUDGE ORIE: Yes. Then let me just see what remains on the agenda

2 as far as UNMIK is concerned.

3 Mr. Guy-Smith.

4 MR. GUY-SMITH: Yes, just as one last housekeeping matter with

5 regard to the pending requests. I'm not sure whether or not it would be

6 of any assistance in the event such documentation exists for an inventory

7 of those requests that have been -- previously been made by the OTP

8 probably about the same subject matter to become either part of some

9 private or confidential record because one of the things that I don't want

10 to be doing is duplicating those efforts that have already been made by

11 the Office of the Prosecutor with regard to those outstanding files.

12 JUDGE ORIE: Yes. Of course there is another matter that just as

13 I earlier said that the Prosecution should not be kept informed about any

14 discovery effort by the Defence, perhaps the Defence would not be entitled

15 to follow every step in the discovery in the investigation. But of course

16 if it is related to one of your earlier requests, then, Mr. Re, you're

17 invited perhaps to provide the Defence with any of the follow-up steps to

18 make an inventory of on what requests you made, what effort, and what

19 response you received, if not yet disclosed to the Defence. I mean, it's

20 now mainly cleaning our desk and going for the future rather than anything

21 else.

22 Yes.

23 MR. BORG-OLIVIER: Your Honour, if it's helpful, I think that

24 UNMIK could also be of assistance in this regard. We do have an inventory

25 of each and every request that was submitted to us and the status of the

Page 3913

1 request and any conditions that may have been given in responding to such

2 requests. So we could, not immediately but in the coming days, perhaps

3 share with the Defence and with the Prosecution an inventory of this

4 nature.

5 JUDGE ORIE: Yes. I would not have asked you to do that, to be

6 the instrument of verification on what actually happened until now. At

7 the same time, since you're offering it by your own, I'm -- I'm inclined

8 to be happy with your offer.

9 Mr. Re, you haven't expressed yourself on the matter, but I take

10 it that in our effort to clear our desks you would not oppose or would

11 you?

12 MR. RE: Well, there's a lot to be said generally for desk

13 clearing, but I would like to speak of course to UNMIK and just to check

14 the terms of what we've -- of the correspondence between UNMIK and the

15 Prosecution before we'd agree to --

16 JUDGE ORIE: Yes.

17 MR. RE: -- a blanket disclosure to the Defence of diplomatic

18 letters between the government authority and the --

19 MR. BORG-OLIVIER: [Microphone not activated]

20 JUDGE ORIE: No. I think what Mr. Guy-Smith is seeking and what

21 is offered by UNMIK is that whenever a request was made by the Defence

22 which has been given follow-up by the OTP and then another follow-up by

23 UNMIK, that the Defence is informed through an inventory by what was

24 done. Whatever is outside the scope of what the Defence asked for is, of

25 course, a matter between OTP and UNMIK, unless of course there are any

Page 3914

1 disclosure obligations resulting from those matters. But that's not what

2 Mr. Guy-Smith is focusing on.

3 Within these limits, Mr. Re, would you agree that this would be a

4 very practical solution?

5 MR. RE: If we're talking about an index of when we asked UNMIK

6 for material and when they responded, we don't object to an index of --

7 JUDGE ORIE: Yes. And also on when UNMIK responded and perhaps

8 going as far as whether any material was attached without -- it seems that

9 the parties agree on the matter and that they have, I take it, with

10 gratitude accepted UNMIK's offer.

11 MR. GUY-SMITH: Most definitely.

12 JUDGE ORIE: Yes. Then there -- are there any other issues at

13 this moment? Would this include -- Mr. Harvey, I'm looking at you. I

14 know that you are desperately seeking for asylum files. Would these be

15 covered in your view at least - and perhaps I should inform the UNMIK

16 representatives.

17 Mr. Harvey would very much like to know from a number of witnesses

18 whether any asylum requests have been made and whether UNMIK has any

19 copies of these asylum requests and could provide them. It is a kind of

20 material which is slightly different from what one would usually expect.

21 Mr. Harvey.

22 MR. HARVEY: I'm grateful to Your Honour for nurturing my request

23 here in this way. If I could just make it clear to our friends from UNMIK

24 the purpose here. Essentially, there are witnesses who have, of course,

25 made statements in connection with this case who have sought asylum or

Page 3915

1 relocation to other countries and who may well have sought the assistance

2 of UNMIK in doing so. We are not interested in where they've gone, why

3 they've gone there specifically; what we're interested in is whether

4 the -- they made any statements in the form of a sworn affidavit or

5 anything of a similar nature which refer to the crimes that are alleged

6 against the accused in this case. In other words, that they are seeking

7 relocation because on such and such a date they were present at or their

8 family member was a victim of a particular crime, and for that reason they

9 are, therefore, in fear.

10 Conversely, of course, if they made statements claiming asylum and

11 failed to make any reference to matters which we would -- or the Tribunal

12 would reasonably expect to be included, then that is a matter of enormous

13 significance as well.

14 MR. RE: Before UNMIK responds --

15 JUDGE ORIE: Yes.

16 MR. RE: -- can I just indicate that this isn't a matter which

17 directly concerns the Prosecution. It may tangentially, but it is an

18 interest in which we submit the Victims and Witnesses Section of the

19 registry of the ICTY may have an interest and should be heard before that

20 matter is taken up.

21 JUDGE ORIE: Yes. There is another matter involved, Mr. Harvey,

22 and that's the following: UNMIK, I would say, has certain

23 responsibilities in providing security to the citizens of Kosovo. If

24 someone seeks asylum elsewhere, that might well include a statement of

25 unsufficient protection provided by the state where he lives at that

Page 3916

1 moment. To that extent, it could not be excluded that UNMIK also has a

2 kind of a personal interest in the matter, but also there let's be very

3 practical. The first question, of course, would be whether UNMIK keeps

4 any record of such request, because if the answer is no, we don't have to

5 further explore what the position of UNMIK would be and whether an order

6 should be given or should not be given, what interests are involved. If

7 the representative of UNMIK could immediately answer that question, then

8 of course our -- could be that the matter is perhaps not resolved, but at

9 least from our desk at this moment.

10 MR. BORG-OLIVIER: Your Honour, to my knowledge --

11 JUDGE ORIE: Yes.

12 MR. BORG-OLIVIER: -- and there is no sort of central unit within

13 UNMIK that has this information. If individuals that have concerns, you

14 know, register their concerns with police, these would not necessarily

15 come to the head of UNMIK for any kind of involvement. Possibly the

16 United Nations High Commissioner for Refugees which deals with these

17 matters is in a better position to sort of provide us with some

18 information. We could check and see if there's any information that could

19 be of any value, but UNMIK does not pursue these matters or does not have

20 any pool of information that could be of any value.

21 JUDGE ORIE: Yes, that's one.

22 Mr. Harvey, another category was not those who are seeking asylum

23 but those who are seeking relocation. Well, there is another -- at least

24 another problem might be involved, that is seeking relocation is usually

25 when persons have fear that their testimony in the case could cause

Page 3917

1 them -- that could cause them damage, in whatever way, which need to be

2 avoided by putting them to another place. And now you say, I'm not

3 interested in where they are, I'm not interested -- I'm just interested in

4 their stories.

5 I think it certainly would need further consultation with the

6 Victims and Witnesses Section before we further deal with the matter, and

7 of course we could contact the Victims and Witnesses Section and try to

8 have a similar exercise and see whether we could reach practical

9 solutions. But there again I would say if you could, perhaps with the

10 reference to the transcript of today, contact the Victims and Witnesses

11 Section and find out what their position would be in relation to

12 disclosure of such limited information, that might assist the Chamber.

13 MR. EMMERSON: Your Honour, Can I --

14 JUDGE ORIE: Yes, Mr. Emmerson.

15 MR. EMMERSON: I haven't got the documents in front of me at the

16 moment, but since this slightly tangential issue has been raised, we have

17 already and some considerable time ago first approached the Prosecution

18 and through the Prosecution the Victims and Witnesses Unit in respect of a

19 particular upcoming witness and the issue of relocation. And obviously we

20 made the position clear that we were not interested in the details of

21 where a person had been relocated to, but certainly in the jurisdiction in

22 which I practice, it would be regarded as highly relevant material if

23 particular arrangements, for example, financial arrangements, have been

24 made which might influence a witness's motivates for making themselves

25 available as a witness in the first place. It may be a fact irrelevant.

Page 3918

1 The Victims and Witnesses Unit's position was -- and as I say, I don't

2 have the with wording in front of me, so with that caveat, it was

3 essentially fairly uncompromising [Realtime transcript read in

4 error "compromising"] on the face of it, and so it may be that some

5 process of the kind that we've gone through today will in due course be

6 necessary in respect of the VWS.

7 JUDGE ORIE: Not necessarily from what I understand from you,

8 Mr. Borg-Olivier, UNMIK as far as is known at this moment, doesn't keep

9 records of the kind Mr. Harvey is seeking.

10 MR. HARVEY: Well, if I could just pursue that a moment. I do

11 understand Mr. Borg-Olivier to be saying there is no office or unit within

12 UNMIK that is charged with this specific responsibility. It may be that

13 there -- if we were to provide a list of individual names to UNMIK and

14 ask -- it may be a question of how files are accessed, and I'm thinking

15 that if we were to provide a list of individual names to UNMIK, they would

16 be able to indicate to us whether there may be anything on their files of

17 the nature that we have been discussing.

18 [Trial Chamber confers]

19 JUDGE ORIE: I think -- it's a very delicate issue, relocation and

20 asylum. As you may know that usually if someone seeks asylum that the

21 state where he comes from is usually not informed of the reasons. So

22 therefore it's really a very delicate question. I think not much is lost

23 if you provide UNMIK with a list of the names, but by saying this, the

24 Chamber does not express any opinion, any further opinion on what the

25 obligations would be, what kind of invitations or orders the Chamber would

Page 3919

1 issue if UNMIK would have reservations or doubts as whether to provide any

2 of the information.

3 I draw the attention, however, of UNMIK to the fact that providing

4 material under Rule 70 could also be providing material to the Defence

5 under Rule 70. They could use that -- Rule 70 is not limited to material

6 provided to the Prosecution, and the Chamber has no reason whatsoever to

7 even consider at this moment that the Defence teams would not act in full

8 conformity with their professional obligations and duties.

9 This -- Mr. Harvey.

10 MR. HARVEY: Your Honour, I'm merely standing since you were

11 addressing me before, but I would say -- I would thank you for those

12 remarks and we will certainly follow-up to UNMIK with a specific letter

13 detailing our request, and then at least they may be able to notify us

14 whether or not as a threshold issue there may exist any documents that may

15 be of assistance. And then we can take it from there.

16 Secondly, in relation to the Victims and Witnesses Unit, we will

17 certainly draw to their attention the relevant passage of the transcript

18 from today and see whether or not that may trigger any further response.

19 But I would endorse Mr. Emmerson's suggestion that probably the most

20 effective way is for the Chamber to entertain a similar hearing with them

21 so that we can resolve this issue expeditiously.

22 JUDGE ORIE: Mr. Emmerson.

23 MR. EMMERSON: And whilst we're on the transcript in that regard,

24 I note that page 43, lines 18 to 21, my submissions are recorded as having

25 described the position of the Victims and Witnesses Unit on this issue as

Page 3920

1 compromising, and in fact the word I used, was "uncompromising."

2 JUDGE ORIE: Yes. That's how we understood it. That's the only

3 way it made sense, as a matter of fact.

4 Is there any issue further, because I don't want to take any

5 further of your time.

6 Mr. Re.

7 MR. RE: Just on that last issue.

8 JUDGE ORIE: Yes.

9 MR. RE: The Prosecution make it quite clear that if there's

10 any -- or any request made of UNMIK concerning any Prosecution witnesses

11 or potential witnesses or people the Prosecution has taken statements from

12 who may have made applications for asylum or relocation, we want to be

13 informed --

14 JUDGE ORIE: Yes.

15 MR. RE: -- of that, because we will want to be heard before

16 that's taken any further.

17 JUDGE ORIE: Yes.

18 MR. HARVEY: I think Mr. Re has copies of our requests already in

19 relation to each of those witnesses so nothing here will be of any

20 surprise to him.

21 JUDGE ORIE: And that will be the same in the future so that

22 Mr. Re is always aware that if any information is sought in relation to

23 any of the potential Prosecution witnesses, that is those who are on the

24 list of witnesses or would it also include ever person you ever

25 interviewed?

Page 3921

1 MR. RE: It's the latter because there clearly are some people who

2 may have been relocated or protective measures have been taken but they

3 didn't ultimately make it to the witness list. Our concern is information

4 relating to relocation or asylum applications, as opposed to the more

5 generic information which the Defence is --

6 JUDGE ORIE: The request is now --

7 MR. RE: -- about to request.

8 JUDGE ORIE: -- limited to any request relation to, let's say, the

9 story of those who are -- or the absence of any story of those who are

10 seeking asylum or relocation, that if any request is made in that respect,

11 that even if they do not appear on the list of witnesses but to the

12 knowledge of the Defence have been interviewed at any earlier stage by an

13 OTP investigator or whether any interviews are disclosed to the Defence by

14 the OTP, that notification will be given of such a request to Mr. Re so

15 that he is in a position to express his concerns, if he has any.

16 MR. EMMERSON: Just for Your Honours' re-assurance, the practice

17 of my team - and I believe the practice of every other team - has been to

18 address the request first to Mr. Re; in other words, we go first to the

19 Prosecution to ask whether they have the material. And generally we get

20 the response that it's not the Prosecution's area of responsibility. Once

21 or twice we've had material served. But the requests are almost always

22 made -- I think always made in the first instance to the Prosecution; that

23 will continue to be the position.

24 JUDGE ORIE: So therefore, full transparency, Mr. Re, as far as it

25 comes to the delicate issue of information about those who have been

Page 3922

1 seeking asylum or relocation.

2 Yes. May I take it that the review of the redacted statements has

3 not been finalised yet or --

4 MR. EMMERSON: I read them.

5 JUDGE ORIE: Yes.

6 MR. EMMERSON: And the implications of them need to be

7 considered. I can certainly see a realistic possibility in respect of

8 one, possibly more than one, but certainly one that in due course we will

9 be seeking to pursue the identification of the individual in order that

10 they might be approached potentially as a witness. Now, that is not

11 something I want to finalise at this stage; I think it needs more mature

12 consideration. But I mention it because it could lead on to the

13 procedural issues that I raised right at the very beginning of the hearing

14 and that the UNMIK representatives had adverted to, namely the possibility

15 of Your Honours hearing UNMIK on some of those issues in closed session in

16 the absence of the parties, but at the moment it's premature. I'm simply

17 conscious of the fact that the UNMIK representatives are here. My own

18 practical suggestion is that we adjourn that issue for the time being and

19 see if we can resolve it through the procedures which have now been -- the

20 structures that have now been provisionally agreed between the parties and

21 endorsed by the Trial Chamber. If that proves to be unworkable, then it

22 may be necessary for there to be some process of litigation with the Trial

23 Chamber resolving it, and I would imagine that might start at least on

24 paper.

25 JUDGE ORIE: Yes. And then also the Chamber would have a -- of

Page 3923

1 course better material to rely upon because I take it that then the

2 disclosed material would be made available to the Chamber as well so in

3 order to understand why you would like to revisit the matter.

4 MR. EMMERSON: Yes. Can I just so that Your Honour -- and I think

5 Your Honour is alight to the issue in any event. It potentially could

6 arise on the context of the cross-examination of a particular witness, and

7 it was an issue that I raised during the cross-examination of the last

8 witness about whether the kidney was inside or outside the body. The

9 witness concerned is not imminent, I understand, in other words it's not a

10 situation that needs to be resolved over the next 72 hours; but on the

11 other hand, it's not something that could be adjourned, so to speak, till

12 much, much later in the Prosecution case because my understanding is that

13 the Prosecution are intending to call the witness within the foreseeable

14 future.

15 JUDGE ORIE: Yes.

16 Mr. Borg-Olivier.

17 MR. BORG-OLIVIER: Your Honour, just for the record I just wish to

18 confirm that, together with my colleagues, we have prepared redacted

19 statements, three of them, and these have been provided to the Defence and

20 the OTP because this has not been said, so I'm saying that for the record.

21 JUDGE ORIE: Yes.

22 MR. BORG-OLIVIER: And of course we stand to be guided by whatever

23 further direction the Chamber will give us.

24 JUDGE ORIE: Yes. We'll leave it for the time being to the

25 parties what follow-up to give to it, and if they address the Chamber

Page 3924

1 seeking invitations or orders at a later stage we will see.

2 Yes.

3 MR. BORG-OLIVIER: Another addition in connection with

4 Mr. Harvey's request, I mean it's not clear to UNMIK what is expected of

5 UNMIK, but we take it it's understood that questions of asylum and

6 relocation are highly sensitive matters. If any questions are brought to

7 our attention, we don't make any commitment at this stage as to how we can

8 respond. But of course in most instances these will involve the Office of

9 the Prosecutor more than UNMIK if they are matters related to proceedings

10 before this Chamber. But general issues of asylum we can certainly pass

11 on to the authorities that deal with these questions and see if there's

12 any useful information that can be passed on.

13 To the extent that, Your Honour, you suggested that perhaps Rule

14 70 constraints could also be imposed on Defence, while we have of course

15 every confidence in the professional responsibilities of the Defence, it's

16 not quite the same to get sort of safe-guards through the Office of the

17 Prosecution, which is a public office that is, you know, more controllable

18 and accountable than Defence attorneys, in general. And I say this in a

19 very general sense. But we'll see if and when we need to make any

20 caveats, we might have to seek the Court's -- or this Chamber's assistance

21 in how best to ensure those safe-guards. Thank you.

22 JUDGE ORIE: Yes. I think it doesn't need further explanation

23 that the Defence is, as we find it in our rules, is counsel and accused;

24 of course that means professionals and nonprofessionals with different

25 interests, perhaps, in the case. Also if we compare that to the interests

Page 3925

1 the Prosecution may have, again different interests and I would say just

2 professional interest.

3 Finally, before we finish. Mr. Guy-Smith, what to do with the

4 12th of January motion? You earlier asked us to -- not to decide upon

5 that. Would that still be the case or would you withdraw it at this

6 moment? Because whatever will happen, it certainly will not be exactly

7 the same motion to decide upon anymore.

8 MR. GUY-SMITH: I believe that based upon the proceedings today

9 that the motion, as it's presently constituted, is a motion that I would

10 be willing to withdraw because in the event there is any further

11 litigation on the issue, you're right, the motion will take a different

12 position. I may -- hopefully I won't, but I may need to allude to those

13 principles that are raised and some of the law that's raised in that

14 motion in a future motion. But at this point in time, I think it would be

15 appropriate to withdraw the motion.

16 JUDGE ORIE: Yes. A second ago you said that you would be willing

17 to withdraw the motion. Now the last words were that "I think it would be

18 appropriate to withdraw the motion."

19 Do you withdraw the motion?

20 MR. GUY-SMITH: I always seem -- I always seem when speaking with

21 you to have more than one word. The answer is: Yes, Your Honour.

22 JUDGE ORIE: Yes. Then this is then on the record, that the

23 motion has been withdrawn.

24 I don't think there is any other matter, Mr. Borg-Olivier,

25 Madam Ciaravolo, or Mr. Dalton, that needs your attendance. I'd like to

Page 3926

1 thank you very much for taking the effort to come to inform the Chamber

2 and to assist in resolving the matter that was bothering the Chamber at

3 this moment. And the Chamber expresses confidence that future dealings

4 with all parties will go as smoothly as they went today. I'd like to

5 thank you very much.

6 I also would like to have a break at this moment. After the break

7 we'll deal with some remaining procedural matters in accordance with

8 the -- with the agenda that has been provided to the parties. We adjourn

9 until 25 minutes past 12.00.

10 --- Recess taken at 12.01 p.m.

11 --- On resuming at 12.30 p.m.

12 JUDGE ORIE: Mr. Emmerson, perhaps before we -- I give you an

13 opportunity to address the Chamber, the Chamber would very much like to be

14 informed first of all whether our discussions on -- and perhaps we go into

15 private session to discuss the matter.

16 Madam Registrar.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 3927

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 THE REGISTRAR: Your Honours, we're back in open session.

12 JUDGE ORIE: Thank you, Madam Registrar.

13 Mr. Emmerson, you were on your feet.

14 MR. EMMERSON: I simply wanted to mention one matter. Your

15 Honours will have in front of you four schedules. They are headed

16 respectively: Documents and photos for Haradinaj Defence;

17 cross-examination of, and then Witness 21 (redacted)

18 (redacted) -- I'm sorry, I think we need a

19 redaction.

20 JUDGE ORIE: Yes.

21 MR. EMMERSON: Thank you. There's an error on that --

22 JUDGE ORIE: For the witnesses we find the names on the top of

23 these lists.

24 MR. EMMERSON: Yes, exactly. For four of them.

25 JUDGE ORIE: Yes.

Page 3928

1 MR. EMMERSON: What these are are -- essentially are the indices

2 to the bundles that were used in cross-examination with the P numbers

3 marked on those that have already been marked for identification, and they

4 are shaded in grey. Anything that is not shaded in grey has not yet been

5 marked for identification, and that is a process that will need to take

6 place. I haven't done or I haven't handed Your Honours the same exercise

7 in respect of Witness 8 or John Crosland because in neither case is their

8 testimony concluded. It could be done, but my submission to Your Honours

9 in respect of both of those two witnesses is going to be the question of

10 the tendering and admission of exhibits for each of them should be

11 concluded, in Mr. Crosland's case, when his testimony concludes and, in

12 the case of Witness 8, if and when he is re-called.

13 JUDGE ORIE: Yes. I then suggest the following, that is that we

14 leave the lists for the time being in the hands of Madam Registrar, that

15 she assigns numbers to it, that we receive the lists -- at least I receive

16 the list back, and then I'll just briefly read out in court exhibit number

17 so-and-so-and-so and it will be that. So that it's on the record but we

18 do not spend any further time on it.

19 MR. EMMERSON: Precisely so.

20 JUDGE ORIE: Yes.

21 MR. EMMERSON: I think what, Madam Registrar, was most keen should

22 be clear on the record is the linkage between tab number and the final D

23 number so that -- so that when it goes into the record it's possible to

24 cross-refer when I'm asking a witness about a document behind tab 6, in

25 those instances where I haven't, as I should have done, had it marked for

Page 3929

1 identification at that very moment --

2 JUDGE ORIE: Yes.

3 MR. EMMERSON: -- and that cross-referencing can be made.

4 JUDGE ORIE: Yes. Madam Registrar prepares it all and we'll just

5 read it all out in court so that it's clear. Then I just received a copy

6 of a VWS report on Witness 29. I'll have a look at that, but first of all

7 let's try to get the list of pending exhibits shorter than it is now.

8 Madam Registrar has provided us with a -- I don't know whether -- no. I

9 have -- let me just ask --

10 [Trial Chamber and registrar confer]

11 JUDGE ORIE: I do understand that the parties have also received a

12 list of MFI numbers where no decision has yet been taken. We see that

13 there are green-marked documents where the Defence has expressed that it

14 did not wish to tender these. And some of them are marked in yellow, and

15 those are the ones where a translation has been replaced by a better one.

16 MR. EMMERSON: Yes. In both of those instances an official

17 translation has been replaced.

18 JUDGE ORIE: Yes. So let's now -- I also did understand that the

19 Andjelkovic matter has not been finally resolved.

20 MR. EMMERSON: I think so far as we are concerned, at least, it

21 can be finally resolved today. As far as the Haradinaj Defence is

22 concerned, we've had the opportunity to review the proposals of the

23 Prosecution. We have no objection or additional material that we would

24 wish to exhibit.

25 Simply by way of a caveat, the letter which is dated the 2nd of

Page 3930

1 April from Mr. Re listing the proposals, I'm -- I understand - although

2 I'll be corrected if I'm wrong - I understand that the 65 ter numbers

3 given on that letter are in error, but that the marked for identification

4 numbers given on Madam Registrar's schedule and the 65 ter numbers given

5 there are correct; in other words, the schedule is correct but the letter

6 is in error. That is my understanding.

7 JUDGE ORIE: Okay. Since we are not admitting any letters into

8 evidence but rather documents.

9 Any of the other Defence counsel, any problems with P1 to P6

10 marked for identification, as they now appear on the list provided by

11 Madam Registrar?

12 Mr. Guy-Smith.

13 MR. GUY-SMITH: Yes, I'm in a similar position to that of those

14 sentiments in -- mentioned by Mr. Emmerson. I want to make sure that with

15 regard to the Andjelkovic notes contained in P1 at pages 2, 3, and 13 of

16 those notes are admitted; the corresponding pages in P3 would be pages 19,

17 20, and 29 of the notebook itself.

18 I had also, during my examination, requested that an exhibit

19 number be given to volume 4, which was 65 ter number 696, in which I

20 had -- that's at page I believe 2851 of the transcript, read out and I

21 believe I had read it in its entirety, pages 3 and 4 of volume 4 of the

22 Andjelkovic notebook. So with that in mind, I'm satisfied with regard to

23 the first six exhibits.

24 JUDGE ORIE: Yes. To be quite honest, it's not entirely clear to

25 me. You seem to be happy with 1 to 6, but you said you are in a similar

Page 3931

1 position, you want to make sure that with regard to the Andjelkovic notes

2 contained in, et cetera, et cetera, those notes are admitted. If they are

3 part of the material as we find it on the list, it's not. So it should --

4 the list is incomplete. So these pages should be added and then a volume

5 4 should be added as well. Under those circumstances, I invite again the

6 parties to find a final set of Andjelkovic exhibits and not here to get

7 here a page or there a page in addition. Let's try to get an agreed set

8 of Andjelkovic material to be admitted, because now to say we admit half

9 of it and volume 4 should be added next week, that's exactly what we tried

10 to avoid.

11 MR. GUY-SMITH: I was hoping to avoid that. It's that there have

12 been some gaps in the presentation made, but I'm sure we can settle this

13 in a short period of time.

14 JUDGE ORIE: Mr. Re, what about not later than next week Wednesday

15 to provide an agreed list of Andjelkovic exhibits and add whatever pages

16 should be covered by P1 or P3 or volume 4 to find its way somewhere in

17 here, or an additional request for assigning a number to any additional

18 set of documents, but that the Chamber receives an agreed list.

19 MR. RE: The -- I thought we'd reached that point. The --

20 JUDGE ORIE: Yes. But that seems --

21 MR. RE: -- letter of the 18th of April --

22 JUDGE ORIE: -- not to be the case.

23 MR. RE: -- referred to the 2nd of April and set out the proposed

24 reordering all the exhibits. That was I think as far as the Prosecution

25 can take it. They've been retranslated, we've reordered them, we've given

Page 3932

1 the numbers they would have in the 65 ter list. I'm just not sure how far

2 we can take it but I can certainly discuss it with Mr. Guy-Smith.

3 JUDGE ORIE: Yes.

4 MR. GUY-SMITH: I don't think it will be a problem.

5 JUDGE ORIE: Okay.

6 MR. GUY-SMITH: I'm sure we can resolve it by Wednesday.

7 JUDGE ORIE: Okay. Then let's resolve it by Wednesday.

8 So that's the first batch we did not manage to get off the list.

9 MR. EMMERSON: Very nearly off the list. May I simply mention I

10 noticed that the column which records whether documents were admitted

11 confidentially or under seal says no in respect of each of those. It may

12 be, I don't know, that the Prosecution have already reviewed the notes to

13 ensure that the names of protected witnesses don't appear, but I would be

14 surprised if there were no names in there of protected witnesses, bearing

15 in mind what it was that we saw --

16 JUDGE ORIE: Yes.

17 MR. EMMERSON: -- of the notebooks.

18 JUDGE ORIE: Yes. Of course reference was made to some of these

19 notes in later testimonies as well.

20 Mr. Re, have you carefully checked that yet or not?

21 MR. RE: I will review that again.

22 JUDGE ORIE: Okay. Then we'll also hear from you in this respect

23 on Wednesday, not later than Wednesday.

24 Then we have D9, D10, D11, and D13 not to be -- not to be

25 tendered. That means that they're taken from the list. We keep the

Page 3933

1 numbers open and we'll not at any later stage use those numbers.

2 [Trial Chamber and registrar confer]

3 JUDGE ORIE: Which requires also that they're formally withdrawn.

4 The reason why we'd prefer to leave these numbers open, that later on the

5 record we would at least know what document was ever discussed at this

6 court or was presented. If we fill those numbers, then of course you get

7 double numbers, then D9 is the original D9 and then the later D9, which

8 might confuse. So we'd rather leave them open as documents that have been

9 withdrawn, but they should be formally withdrawn by the Defence then.

10 MR. EMMERSON: Well, then I formally withdraw them.

11 JUDGE ORIE: Yes.

12 MR. RE: Your Honour, might the Prosecution be heard on this

13 particular matter because these are documents which were the subject of

14 cross-examination - Mr. Di Fazio was the lawyer who was involved with one

15 of those witnesses - as to whether or not they should form part of the

16 trial record.

17 JUDGE ORIE: Yes.

18 MR. RE: Because even though the Defence has put them forward, the

19 Prosecution has a submission it would like to make as to whether they

20 should be in the record.

21 JUDGE ORIE: Yes.

22 MR. DI FAZIO: Very briefly it's only this: Where a statement of

23 a witness has been used in cross-examination and matters extracted from

24 that statement and put to the witness, then it's fair, in the

25 Prosecution's submission, that you should see that extract or section from

Page 3934

1 the witness statement in the context of everything else that the witness

2 has said so that you get a complete picture of how and why the witness

3 says that. So for that reason, the -- the Prosecution suggests, submits,

4 that you should accept the whole statement.

5 JUDGE ORIE: Yes.

6 May I guess the response is --

7 MR. DI FAZIO: For that purpose only, for that purpose only.

8 JUDGE ORIE: I can imagine that the Defence would be very worried

9 about having in evidence major portions of statements which we not even

10 have read, where no attention was paid to it in any way, and where a

11 specific portion of a statement has been read into the record.

12 MR. EMMERSON: And where the Prosecution have an opportunity in

13 re-examination to place that portion in context if they think it's been

14 taken out of context.

15 JUDGE ORIE: And where, if not tendered, the Prosecution also has

16 a possibility to tender that document themselves, if the Defence doesn't

17 do it. Mr. Di Fazio, I think it's open to you. And it might be a

18 suggestion that if you put it in context, that you then carefully select

19 relevant context which would serve a better understanding. But now to say

20 that everything should be in -- the whole of the statement should be in

21 evidence, that might be one bridge too far. But I'll first of all consult

22 with my colleagues after giving you an opportunity to further respond.

23 MR. DI FAZIO: Your Honours, I'd just want to make clear that the

24 whole purpose of that is simply to ensure that you have the context in

25 which the relevant portion was placed -- was written to the statement, so

Page 3935

1 that you understand how it arose in the course of the statement and the

2 reason why it arises in the course of the statement at that point, so you

3 can see and understand fully what the witness meant in that particular

4 portion of the statement. And that's the only reason and the purpose for

5 which the Prosecution would submit that you should have the whole

6 statement in, not as evidence or that because the Prosecution wants to use

7 other portions of the statement as evidence or the truth of what's

8 contained in those other parts of the statement; so that you simply have

9 it in context.

10 JUDGE ORIE: Yes.

11 Now, I'm trying to find a proper procedural analysis of the

12 present situation. These statements have been marked for identification.

13 They have not been tendered, so therefore admission seems not to be an

14 option at this moment for the Chamber. These documents are being

15 tendered. The withdrawal was only for administrative reasons, that you

16 can't have these numbers open and the documents still in the system.

17 So we are now mixing up an administrative matter with a procedural

18 matter, because, Mr. Di Fazio, is it your opinion that we could, despite

19 the fact that they were not tendered, we could -- what should our decision

20 be? I mean, the Defence has not tendered these documents; they are just

21 marked for identification and portions have been read. What do you -- you

22 say it should be in evidence, not for the purposes of relying on the

23 remainder but at least to -- but how is it in evidence if no party has

24 tendered it?

25 MR. DI FAZIO: In effect, we tender it. We say -- we say that you

Page 3936

1 should -- it should go into evidence and the Prosecution says that we

2 tender it.

3 JUDGE ORIE: Okay.

4 MR. DI FAZIO: For that very limited purpose.

5 JUDGE ORIE: Yes. So the matter is clear now, so it's not the

6 Prosecution opposing to the withdrawal, but as a matter of fact the

7 Prosecution tendering these documents, which gives an opportunity to the

8 Defence --

9 MR. EMMERSON: To oppose.

10 JUDGE ORIE: -- to oppose or to object as they want to.

11 MR. EMMERSON: Which I do, because if the only purpose for which

12 it was to be admitted is to see the passage put in cross-examination in

13 its proper context, then the right time for that to be done is in

14 re-examination if the Prosecution take the view that a passage was put out

15 of context. And that would give the witness the opportunity through

16 testimony that he's giving to indicate what it was he was referring to.

17 When I put a passage to a witness -- I mean these particular

18 examples, for instance, in the case of Witness 4, it was either Witness 4

19 or Witness 19, Your Honours may recall I put a passage to him from his

20 witness statement which concerned what he had heard about my client. Now,

21 if the Prosecution took the view that that was out of context, then, as I

22 say, the right moment to take that objection is in re-examination and then

23 for that passage to be put so the witness can say, Well, it isn't out of

24 context because of this or is it out of context or this is the way in

25 which this comment comes to be made.

Page 3937

1 It's not appropriate for the Prosecution to then subsequently seek

2 to suggest, knowing that the document was not tendered at the time because

3 I made that clear on the record when I used it, that the putting of one

4 comment from a witness statement results in the entire witness statement

5 being admitted. There are procedures and the Prosecution used them under

6 92 ter for admitting witness statements, but that isn't, in our

7 submission, one of the more proper bases on which to proceed.

8 JUDGE ORIE: Any other observations by you, Mr. Guy-Smith, or

9 Mr. Harvey?

10 MR. GUY-SMITH: No, I join in the remarks made by Mr. Emmerson.

11 MR. HARVEY: So do I, quite emphatically.

12 JUDGE ORIE: Yes.

13 [Trial Chamber confers]

14 JUDGE ORIE: The Chamber does not finally decide on the matter

15 yet. The Prosecution is invited to explain to the Chamber what context is

16 there in the statement that would serve the Chamber in better

17 understanding the portion quoted, and then perhaps to limit the request

18 for -- or the tendering of the document to the portion giving that

19 context. At that moment, we'll hear from the Defence whether that context

20 causes any problem to the Defence, so that is the proposed course to

21 proceed.

22 MR. DI FAZIO: Thank you, Your Honours. Thank you for that

23 guidance.

24 And can I ask: How could you like us to address you, by way of

25 written motion or perhaps oral submissions?

Page 3938

1 JUDGE ORIE: Perhaps the --

2 MR. DI FAZIO: With respect to --

3 JUDGE ORIE: -- the best way of doing it is submitting -- I mean,

4 it's clear from the transcript what the issue is, but just by submitting

5 the relevant portion you -- well, the parts read out and the context you

6 would consider relevant for the Chamber for a better understanding, to

7 submit that and to, perhaps, add one or two words saying that: Instead of

8 tendering the whole of the document as you did today orally, this

9 submission seeks to further specify what portion of the document you would

10 like to have in evidence.

11 MR. DI FAZIO: Yes, we'll attend to that.

12 MR. EMMERSON: Might the Prosecution also be invited to indicate

13 what it is about the passage that they say is relevant context; in other

14 words, why it is that the wider passage is relevant context.

15 JUDGE ORIE: Yes. To the extent that that's not yet

16 self-explanatory from the document itself and if the parties could agree

17 on what is a relevant context which is not in dispute, then of course it's

18 easier for the Chamber to take a decision. Yes. Because otherwise we get

19 this is context, now take off three lines, add another two lines. If

20 these kind of negotiations could be done between the parties, if there's

21 no agreement, the Chamber will decide.

22 Then I move on to first P30 on the list. Any objection from the

23 Defence? That's a unscrambled DNA report dated --

24 MR. EMMERSON: We've --

25 JUDGE ORIE: -- 29th of August.

Page 3939

1 MR. EMMERSON: We've been backwards and forwards with this exhibit

2 many times. My position is I have no objection in respect of it, but I

3 question why a DNA report which is uninterpreted, which is simply a list

4 of numbers where there isn't going to be any interpretation of it and

5 where identification by DNA is admitted, whether it's of any assistance to

6 the Trial Chamber to have a document that is not going to be explained or

7 take the case any further.

8 JUDGE ORIE: Yes.

9 Mr. Dutertre.

10 MR. DUTERTRE: [Interpretation] Yes, Your Honour. Negotiations

11 related to these documents are ongoing with the Defence, and once we've

12 concluded these negotiations, time might come to make a decision. So what

13 I would suggest is that we postpone the decision on this exhibit to a

14 later date, and at that time -- because it will be better to make a

15 decision at that time because it would be -- it would not be a good idea

16 to make this decision now.

17 JUDGE ORIE: Yes. So therefore, our efforts to get items from the

18 list failed again.

19 P30 is still on our MFI list.

20 Then we have D14, D17, D18, D20, D21, I stop there.

21 MR. EMMERSON: Can I --

22 JUDGE ORIE: And I add to that that for D20 and D21 new

23 translations have been --

24 MR. EMMERSON: Can I put --

25 JUDGE ORIE. Yes.

Page 3940

1 MR. EMMERSON: -- put D14, first of all, in context. Your Honour

2 will recall, that was a list drawn up by the Defence of the names of

3 individuals who are recorded in other documents as being members of the

4 PJP, either having been issued with weapons or as having received

5 salaries. The source documents were placed before the Trial Chamber, they

6 were marked for identification, and they were admitted as D --

7 JUDGE ORIE: It was an extract of --

8 MR. EMMERSON: They were all of them admitted. The Prosecution

9 reserved their position in respect of this document. This was a document

10 I used on the ELMO simply to cull the key names that needed to be put in

11 cross-examination to various witnesses. So that was the background in

12 respect to that document. It's tendered so far as the Defence is

13 concerned, but it's a Defence-created document and the wish of the

14 Prosecution was to cross-refer in detail the names that are on that

15 document with the names that appeared in the source document that has now

16 been admitted.

17 JUDGE ORIE: Yes. And you're wondering whether, although

18 tendered, you could withdraw that request to have this admitted into

19 evidence but rather not do that without the Prosecution having expressed

20 their --

21 MR. EMMERSON: No, no, no.

22 JUDGE ORIE: You'll have to --

23 MR. EMMERSON: I have not made myself clear. I'm tendering it.

24 JUDGE ORIE: Okay. Fine.

25 MR. EMMERSON: And it remains tendered --

Page 3941

1 JUDGE ORIE: Okay.

2 MR. EMMERSON: -- so that the transcript can be understood --

3 JUDGE ORIE: Okay.

4 MR. EMERSON: -- when --

5 JUDGE ORIE: Yes.

6 Any objections, Mr. Dutertre?

7 MR. DUTERTRE: [Interpretation] Yes, Your Honour. Yes, it's not an

8 official document. It's, if I may say so, a subproduct prepared by the

9 Defence, it's a document that does not prove anything and that's why we

10 want to oppose the admission of this document as an exhibit.

11 JUDGE ORIE: In what way does it hurt? I'm thinking the Appeals

12 Chamber later reading our transcripts and that was one of the concerns

13 expressed by -- I think by Mr. Re when we found the place of the burial

14 near to the mosque and not to know what the names are that are on that

15 list, Mr. Dutertre. Is it in any way prejudicial to the OTP?

16 MR. DI FAZIO: If I may assist Mr. Dutertre --

17 JUDGE ORIE: Yes.

18 MR. DI FAZIO: -- because I may have inadvertently led him into

19 that objection. Mr. Dutertre put the matter very clearly and Mr. Emmerson

20 has also put the matter very clearly. It is a Defence-produced document

21 and it does assist in the understanding of the transcript. If it's only

22 to be tendered for that entirely limited purpose and just for that purpose

23 alone and no other purpose, then we're not going to cause any trouble

24 about that.

25 MR. EMMERSON: It's no different from a surrogate identification

Page 3942

1 sheet put to the witness at the beginning. It's a document created by one

2 of the parties in order to enable anybody looking at the transcript to

3 follow the evidence.

4 JUDGE ORIE: Okay. So is there any objection against D17, D18,

5 D20, D21?

6 MR. DUTERTRE: [Interpretation] I leave the matter to the Chamber.

7 [Trial Chamber confers]

8 JUDGE ORIE: The documents D14, D17, D18, D20 with a new

9 translation, and D21 with a new translation are admitted into evidence and

10 we succeeded in having the first five MFI numbers from the list.

11 We move on to D22.

12 MR. EMMERSON: And I --

13 JUDGE ORIE: -- which you didn't tender it. Now the question is

14 not the administrative matter on whether to withdraw it, but the --

15 Mr. Di Fazio, is there a similar wish?

16 MR. DI FAZIO: It's the same issue that arose with the earlier

17 witness statements.

18 JUDGE ORIE: May I then take it that you -- I take it the Defence

19 has a similar objection to the --.

20 MR. EMMERSON: I think, if I may say so, the position of the

21 parties is likely to be the same in respect of any witness statement put

22 in this way unless the Prosecution take the view that there is no context

23 to bring to the Trial Chamber's attention.

24 JUDGE ORIE: Okay.

25 MR. DI FAZIO: That's quite correct.

Page 3943

1 JUDGE ORIE: Okay. Then therefore the Chamber expects you,

2 Mr. Di Fazio, also to submit that portion of the statement, including the

3 portion quoted which gives the context which, in the view of the OTP, the

4 Chamber would need and we'll then decide on that once we have received

5 that and once we have received the response by the Defence and the parties

6 are again invited to see whether they could reach an agreement on the

7 matter.

8 Then we are at D27 up till D29, the latter included. Any

9 objection from the Prosecution? That's photograph marked -- photograph

10 marked -- these are markings made on Exhibit D24.

11 MR. EMMERSON: There's no objection.

12 JUDGE ORIE: No objection. Then D27 to D29, these three documents

13 are admitted into evidence.

14 P40, video-clip showing testimony.

15 MR. EMMERSON: Yes.

16 JUDGE ORIE: Yes. It's confidential.

17 MR. EMMERSON: It's confidential, but it's also not an entirely

18 accurate description of what it was. If Your Honours remember, it was the

19 video that came at the 11th hour during the course of the evidence of

20 Witness 8 --

21 JUDGE ORIE: Oh, yes.

22 MR. EMMERSON: -- an account given in 2006.

23 JUDGE ORIE: Yes, I now remember. As a matter of fact, in view of

24 the matters still pending in relation to Witness 8, it might perhaps be

25 better to --

Page 3944

1 MR. EMMERSON: Adjourn.

2 JUDGE ORIE: -- adjourn this decision of this matter. And it was

3 not -- that's perhaps already from Madam Registrar, it was not testimony

4 but an interview.

5 Then P41, P42 -- well, P41 and that's all. Let me just have a

6 look. P41 up till and including P54. Any objections?

7 MR. EMMERSON: I'm furrowing my brow in respect of P42, and it may

8 simply be a matter of description. There was a 92 ter statement of

9 Witness 21 that was admitted, but I don't recall his consolidated witness

10 statement having been -- am I right? Yes.

11 MR. DUTERTRE: [Interpretation] That's absolutely right,

12 Mr. President. There was only a 92 ter statement and it seems to me that

13 it's already been admitted into evidence. Therefore, there might be -- it

14 might be the same -- the same exhibit as the exhibit that had already been

15 admitted.

16 JUDGE ORIE: Yes. Well, at least in the administration of Madam

17 Registrar, it's not admitted, so therefore -- if it is the same

18 document --

19 MR. EMMERSON: I think the position is nobody's tendering the

20 document that appears on this list, in fact.

21 JUDGE ORIE: I think, as a matter of fact, those where the parties

22 do not intend to -- if it's a 92 ter -- if it's the same 92 ter statement

23 then of course it is --

24 MR. EMMERSON: Except I think that's already been admitted under a

25 different exhibit number, according to Mr. Dutertre.

Page 3945

1 JUDGE ORIE: What would be the other number? Because I would be

2 surprised if it suddenly shows up somewhere in 75 or 83.

3 MR. DUTERTRE: [Interpretation] I believe that the document has

4 already been admitted into evidence. If that's, indeed, the 92 ter

5 statement, we want to tender it, we want it to become an exhibit.

6 MR. EMMERSON: And I wouldn't oppose that.

7 JUDGE ORIE: You wouldn't oppose that.

8 MR. EMMERSON: If it is the 92 ter statement.

9 JUDGE ORIE: Yes.

10 Madam Registrar, is there any way of getting document U016/0136,

11 which is P42, on the screen so that we just check where we are, that we

12 know whether that's the same document or not? P42 ...

13 Oh yes, and not to be for the public but for ourselves.

14 MR. EMMERSON: Um --

15 JUDGE ORIE: I'm trying to get it on my screen at this moment and

16 I'll manage to do that.

17 MR. EMMERSON: We are loading it, and the reason it's taking so

18 long is because it's 42 pages --

19 JUDGE ORIE: I've got mine on the --

20 MR. DUTERTRE: [Interpretation] The title is consolidated statement

21 and we had submitted it as a 92 ter statement.

22 JUDGE ORIE: Yes. And it says covering a part of and then the

23 name of the witness, his evidence. It is dated Wednesday, the 11th of

24 April; Thursday, the 12th of April. And it looks very much that is the

25 document, and let's just see how many pages there are. As far as I can

Page 3946

1 see, it has got eight pages -- oh, yes, no, I see there are far more.

2 Yes. Yes, 42 pages.

3 MR. EMMERSON: I --

4 JUDGE ORIE: It could be -- it could be that the consolidated

5 statement has been presented as a 92 ter statement. We would have to

6 check that in the transcript.

7 MR. EMMERSON: There were two, as I recall it, two statements.

8 There was a consolidated witness statement and then there was a 92 ter

9 statement, to my recollection. And I think this may be the longer of the

10 two.

11 JUDGE ORIE: Yes. Now we have -- I'm looking of course in my

12 electronic version. It says 42 pages. That would include -- let me just

13 check. I see at least that there are some attachments to it as well, page

14 42 being a map; page 41 being a copy of P9, as far as I remember, UCK. So

15 it seems that it is with attachments.

16 MR. GUY-SMITH: Excuse me, Your Honour.

17 JUDGE ORIE: Yes.

18 MR. GUY-SMITH: If I might be of assistance, the document was

19 initially sought to be introduced according to 92 ter page 2612, and I

20 believe at 2623 -- I'm sorry, 2622 the exhibit number of P42, marked for

21 identification, was assigned to the statement.

22 JUDGE ORIE: To this statement as we find it here?

23 MR. GUY-SMITH: Of the 92 ter, yes.

24 JUDGE ORIE: Yes. But the issue is whether the document we'd find

25 now in the system is the 92 ter statement.

Page 3947

1 MR. EMMERSON: Can I make a practical suggestion rather than

2 taking time in court?

3 JUDGE ORIE: Yes.

4 MR. DUTERTRE: [Interpretation] Let me add one thing. We had a

5 proofing session with the witness, and then later on we used these notes

6 to produce a 92 ter statement that was called consolidated statement and

7 filed as a 92 ter statement. And there might be a confusion between the

8 proofing notes of the previous week and the 92 ter document. I'm

9 currently checking this matter, but at the end of the statement that we

10 filed as a 92 ter statement, on the last page we mention the issue of

11 whether the witness had provided a statement to another organisation. I'm

12 currently opening this page, and in a few seconds I will tell you whether

13 this -- we, indeed, filed this consolidated statement as a 92 ter

14 statement.

15 MR. EMMERSON: Just to make a practical suggestion rather than

16 taking time in court.

17 JUDGE ORIE: Yes.

18 MR. EMMERSON: There's no dispute about the issues of principle.

19 We're all agreed that if it's the 92 ter statement, it should be exhibited

20 under this number. May we just check outside court rather than taking

21 Your Honours' time --

22 JUDGE ORIE: Yes, that's --

23 MR. EMMERSON: -- to satisfy that it's the right document and come

24 back you on Monday in relation to it.

25 JUDGE ORIE: Since it still is possible if a document is admitted

Page 3948

1 into evidence to withdraw that admission, the Chamber, if there are no

2 other objections against P41, I think we -- yes, the whole of the range

3 is -- we start with P41, pseudonym sheet, up till P54. No further

4 objections?

5 MR. EMMERSON: No.

6 JUDGE ORIE: Then P41 up to and including P54 are admitted into

7 evidence. If any of the parties has some further comments on P42, the

8 Chamber will hear from that party.

9 Then let's -- yes, Mr. Dutertre.

10 MR. DUTERTRE: [Interpretation] I've checked, it's indeed the right

11 document, and let me allow to refer to line 10, page 2612 of the

12 transcript, where it is stated that it is a consolidated document --

13 JUDGE ORIE: Yes, it is admitted into evidence and only if the

14 someone complains about it, the Chamber would like to hear further

15 submissions.

16 Then we go on. D35 is the next one, photograph showing the

17 village of Gllogjan. Any objection?

18 MR. RE: There's no objection from the Prosecution to any of the

19 photographs marked by witnesses in the course of the proceedings.

20 JUDGE ORIE: It's not marked, as far as I understand.

21 MR. RE: Or shown to witnesses.

22 JUDGE ORIE: At least the description is shown to -- okay. D35 is

23 admitted into evidence. Then we now come to P55 and that is the marking

24 taken from P48. We have P55 - let me just look - up to and including P67.

25 Any objection?

Page 3949

1 MR. EMMERSON: Your Honour, no. No. The description's -- just to

2 be clear, a number of these items from 57 onwards are, in fact,

3 photographs --

4 JUDGE ORIE: Yes.

5 MR. EMMERSON: -- and it may be of some assistance for that to be

6 entered into the system so we know what we are looking at, but apart from

7 that, no objection at all.

8 JUDGE ORIE: If there is any suggestions of a better understanding

9 of the character of the document, suggestions can be made for amending the

10 description in the system. Therefore P55 up to and including P67 are

11 admitted into evidence.

12 Then P68 is -- yes, that's in relation to another witness. P68,

13 any --

14 MR. EMMERSON: No objection.

15 JUDGE ORIE: No objection. Admitted into evidence.

16 I suggest that we leave all the Crosland exhibits as they are and

17 decide upon them at the very end of the testimony.

18 Then we come to the - and I'm now at P120 - the Zyrapi documents.

19 The Defence has indicated where objections are. I do understand, I have

20 not read it yet, but that the Prosecution has in writing taken a position

21 in relation to those objections. The Defence is invited to do a similar

22 thing, to respond in writing so that we finally can decide.

23 MR. DI FAZIO: If Your Honours please.

24 JUDGE ORIE: Yes, Mr. Di Fazio.

25 MR. DI FAZIO: Just one matter.

Page 3950

1 JUDGE ORIE: Yes.

2 MR. DI FAZIO: The Defence provided the Prosecution I think at the

3 conclusion of Mr. Zyrapi's testimony of a list of documents that they

4 objected to.

5 JUDGE ORIE: Yes.

6 MR. DI FAZIO: Essentially they are -- broadly speaking, they are

7 the non -- the documents not signed by Mr. Haradinaj. Anyway, all the --

8 that's all covered in our submission.

9 JUDGE ORIE: Yes.

10 MR. DI FAZIO: But one of them may be a mistake, I don't know,

11 it's P261 -- P00261. Now, that, as far as I understand it, is a document

12 signed by Mr. Zyrapi himself. And I would think that in those

13 circumstances the Defence will probably withdraw their application.

14 MR. EMMERSON: Well, we'll take that comment into consideration in

15 the written submissions, which may we file by Wednesday, please?

16 JUDGE ORIE: That's -- there's no specific urgency, I would say at

17 this moment, yes.

18 MR. EMMERSON: Thank you.

19 JUDGE ORIE: Then we have -- I re-start -- then we have D37 is one

20 of the -- it's the -- I think the only Defence exhibit for Zyrapi. I

21 think we could deal with that --

22 MR. EMMERSON: No, in fact not. Zyrapi is one of those whose name

23 appears on the top of the schedule that I handed to Your Honour --

24 JUDGE ORIE: Yes.

25 MR. EMMERSON: -- this morning. The position is - and if Your

Page 3951

1 Honours have the schedule at hand - the first 11 have already been

2 exhibited.

3 JUDGE ORIE: Yes.

4 MR. EMMERSON: I'm sorry, yes, they've already been marked for

5 identification, I should say.

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: Because they are P numbers. And the last, number

8 12, is not yet marked for identification.

9 JUDGE ORIE: At the same time I see on the list of Madam

10 Registrar -- unless it's another document, it's described D37, map --

11 MR. EMMERSON: Yes.

12 JUDGE ORIE: -- of part of Drenica.

13 MR. EMMERSON: It is another document.

14 JUDGE ORIE: It is.

15 MR. EMMERSON: That is a document put in cross-examination by

16 Mr. Harvey which had previously been an exhibit in the Limaj trial.

17 JUDGE ORIE: Okay. Then -- then let's split that up and see

18 whether we can deal with it right away --

19 MR. DI FAZIO: I --

20 JUDGE ORIE: All the other numbers on the Zyrapi schedule I see

21 are all P documents. I would like to get rid of, at least from our desk,

22 then the category of the Defence documents in relation to Zyrapi which

23 justify a different approach perhaps than the long list of documents

24 tendered by the Prosecution.

25 MR. EMMERSON: The fact of the matter is that items 1 to 11 in the

Page 3952

1 bundle --

2 JUDGE ORIE: Yes.

3 MR. EMMERSON: -- used for cross-examination are in fact documents

4 tendered by the Prosecution.

5 JUDGE ORIE: Yes.

6 MR. EMMERSON: It's just that they -- so to that extent they're

7 the subject of the pending litigation on which we will be filing a

8 submission on --

9 JUDGE ORIE: Yes, but then we could --

10 MR. EMMERSON: -- Wednesday, but they're obviously not objected

11 to, so there's agreement between the parties --

12 JUDGE ORIE: Yes, but --

13 MR. EMMERSON: -- as regards those 11.

14 JUDGE ORIE: I do understand that, but at the same time let's

15 leave all the Zyrapi P exhibits open and finally see exactly what is

16 objected to and only deal at this moment with the D exhibits. That would

17 be D37, map of part of Drenica; and then a number still to be assigned,

18 Madam Registrar, exhibit number -- the document ID is 1D09/0149, detail of

19 a map tendered in the Milutinovic case. That would be number ...?

20 THE REGISTRAR: Your Honours, this would be Exhibit Number D42.

21 JUDGE ORIE: D42. If there are no objections against D37 --

22 MR. DI FAZIO: No objections, Your Honour.

23 JUDGE ORIE: No objections.

24 Then D37 and D42 are admitted into evidence.

25 MR. EMMERSON: Yes. There's a description error, I'm afraid. The

Page 3953

1 exhibit that Your Honour's just assigned the number to --

2 JUDGE ORIE: Yes.

3 MR. EMMERSON: -- was in fact tendered by Colonel Delic in the

4 Milosevic case and not in the Milutinovic case.

5 JUDGE ORIE: Okay. Then the description should be corrected.

6 Madam Registrar, you've got that?

7 Then we move on. P266 and P267, any objection by the Defence?

8 MR. EMMERSON: Would Your Honour just give me one moment?

9 JUDGE ORIE: Yes.

10 MR. EMMERSON: No, no objection from -- for our part to the --

11 MR. GUY-SMITH: None.

12 JUDGE ORIE: Mr. Harvey? None of the Defence teams.

13 Then P266, P267 are admitted into evidence.

14 We then move on to three Defence exhibits, that's D38 up to and

15 including D40.

16 Any objection by the Prosecution?

17 MR. RE: Can the Trial Chamber assist where they are on the list?

18 JUDGE ORIE: On the list they are -- it's -- the list is

19 chronological. You find them on the list we have now -- I've got in front

20 of me, it's on the last page. That's the --

21 MR. RE: Then we -- no objection.

22 JUDGE ORIE: -- most recent one. No objection. So therefore D38

23 up to and including D40 are admitted into evidence. And then the last one

24 on my list is P268, a map marked by the witness.

25 Any objection?

Page 3954

1 MR. EMMERSON: No objection.

2 JUDGE ORIE: No objection. Same true for the he other Defence

3 teams. Then P268 is admitted into evidence.

4 MR. EMMERSON: Could I ask Your Honour at this point to take

5 another of the schedules that I handed in --

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: -- which is the Rrustem Tetaj schedule. And Your

8 Honours will see it's the shaded areas which form the majority of the

9 documents behind the tabs in the bundle shown to Mr. Tetaj during

10 cross-examination by the Haradinaj Defence team are P-numbered exhibits;

11 in other words, they're documents that have already been marked for

12 identification. Many of them, I think, documents that are part of the

13 Bislim Zyrapi collection of documents as exhibited.

14 JUDGE ORIE: Still to be decided upon.

15 MR. EMMERSON: Still to be decided upon, save that there is no

16 dispute in respect of those ones. And -- and that leaves those that are

17 not shaded which need to have an MFI number assigned to them.

18 JUDGE ORIE: Yes. Well, we invited, as a matter of fact, Madam

19 Registrar to prepare that. I just made an exception --

20 MR. EMMERSON: Very well.

21 JUDGE ORIE: -- as far as the one witness was concerned because

22 there was another -- we could deal with all the Defence exhibits there.

23 So for these are not in grey.

24 [Trial Chamber confers]

25 JUDGE ORIE: Yes. One of the things we'll carefully verify is

Page 3955

1 whether the admission is always under seal where the circumstances require

2 so. The parties are invited to check that on the basis of the list of

3 Madam Registrar, and the Chamber will do the same, so in order not to make

4 any mistake.

5 Then in relation to exhibits, we have -- in relation to the

6 exhibits marked for identification in relation to Witness Crosland, of

7 course we have a long list. If, perhaps, an exchange could already be

8 started on where most likely we'll find objections or not, that would

9 certainly assist when finally the testimony of Mr. Crosland will be

10 concluded.

11 MR. EMMERSON: I think there's likely to be very little area of

12 dispute, if any.

13 JUDGE ORIE: Yes. If it would be possible to inform the Chamber,

14 perhaps also the Prosecution, prior to the start of the continuation of

15 the testimony of Mr. Crosland where we stand, then it may be easier to

16 resolve and it may also be easier to proceed.

17 I think, as a matter of fact, that in that respect the -- yes, the

18 Limaj transcript was already admitted.

19 Then one of the outstanding issues is that the Chamber will have

20 to decide on the security situation concerning witnesses in Kosovo. I

21 think we have now received the positions of Defence parties. The parties

22 seem to agree that this, I would say, the third requirement, that is,

23 there exists an unstable security situation in that territory which is

24 particularly unfavourable to witnesses who appear before the Tribunal,

25 whether we can accept this as an agreed position of both parties that it

Page 3956

1 doesn't need any further evidence.

2 MR. RE: That's always been the Prosecution's position, and it's

3 entirely consistent with the position we've taken throughout the pre-trial

4 and the trial.

5 JUDGE ORIE: Yes. Then the Chamber will consider whether or not

6 we are going to accept that as a kind of an agreed circumstance.

7 Yes. Then we have received a short report on Witness 29. I see

8 it's dated this very morning, just before the start, and I am reading it

9 now.

10 I do understand perhaps we should go into private session for a

11 second.

12 [Private session]

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Page 3957

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20 [Open session]

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

22 JUDGE ORIE: Thank you, Madam Registrar.

23 MR. HARVEY: Very quick. Just to be assist the Court, my

24 submission in relation of Witness 29, you'll find, Your Honour, at 3594 on

25 the 26th of April your direct instruction to the witness which was that he

Page 3964

1 should go accompanied by someone from the Victims and Witnesses Section to

2 accompany him to any place where you keep one of these notes and to

3 provide them to the person that accompanies you or someone assigned by

4 Victims and Witnesses Section. So Your Honour --

5 JUDGE ORIE: Yes, that's --

6 MR. HARVEY: -- will have a look at that.

7 JUDGE ORIE: Seems to be rather clear.

8 [Trial Chamber and registrar confer]

9 JUDGE ORIE: Yes. Madam Registrar, who has also found the

10 relevant section, said that I added to that: To the extent that it is

11 within the competence of the VWS, because I was not fully aware at that

12 moment to what extent VWS is competent to accompany people in their homes,

13 even if they would not like to be accompanied by VWS. That's totally a

14 different completely matter.

15 So therefore we'll further inquire into the matter what actually

16 happened and why the witness did the search on his own.

17 Any other questions?

18 MR. HARVEY: And indeed how the next search is to be conducted.

19 Thank you.

20 JUDGE ORIE: Of course, that goes without saying.

21 If there are no further procedural matters, I would like to thank

22 the parties for their cooperative approach in resolving quite a lot of

23 procedural matters. We adjourn until tomorrow, the 11th of May, 9.00, in

24 Courtroom I.

25 --- Whereupon the hearing adjourned at 1.46 p.m.,

Page 3965

1 to be reconvened on Friday, the 11th day of

2 May, 2007, at 9.00 a.m.

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