1 Wednesday, 17 August 2011
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.21 p.m.
6 JUDGE MOLOTO: Good afternoon to everybody in and around the
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. This is case
10 number IT-04-84bis-PT, the Prosecutor versus Ramush Haradinaj,
11 Idriz Balaj, and Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you so much.
13 Can the accused understand and hear the proceedings in the
14 language they understand, Mr. Haradinaj?
15 THE ACCUSED HARADINAJ: [Microphone not activated]
16 JUDGE MOLOTO: Mr. Balaj.
17 THE ACCUSED BALAJ: [Microphone not activated]
18 JUDGE MOLOTO: And Mr. Brahimaj.
19 THE ACCUSED BRAHIMAJ: [Interpretation] Yes.
20 JUDGE MOLOTO: Thank you so much.
21 Can we have the appearances, please, starting with the
23 MR. ROGERS: Yes, good afternoon, Your Honours. Paul Rogers,
24 together with Ms. Daniela Kravetz, Mr. Aditya Menon, and our case manager
25 today Mr. Colin Nawrot.
1 JUDGE MOLOTO: Thank you so much.
2 And for the Defence, Mr. Emmerson.
3 MR. EMMERSON: Please, Your Honours, I appear on behalf of
4 Mr. Haradinaj together with my learned friends Mr. Rod Dixon,
5 Ms. Annie O'Reilly, and Mr. Andrew Strong.
6 JUDGE MOLOTO: Thank you so much.
7 And Mr. Guy-Smith.
8 MR. GUY-SMITH: Good afternoon, Your Honours. Gregor Guy-Smith,
9 appearing with Colleen Rohan, Chad Mair, Gentian Zyberi on behalf of
10 Idriz Balaj.
11 JUDGE MOLOTO: Thank you very much.
12 And for Mr. Brahimaj?
13 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey,
14 together with me Mr. Paul Troop, there's Sophie Rigney who is our case
15 manager, Mr. Luke Boenisch who will be taking over from her as case
16 manager, and that's it. Thank you.
17 JUDGE MOLOTO: Thank you very much, Mr. Harvey. I presume this
18 is the first time that we're sitting as a full Bench. If we have before,
19 I don't think it makes any difference if I re-introduce the Judges with
20 me. On my right I have got Judge Hall and on my left Judge Delvoie. I
21 guess I am known already, having been with you for some time.
22 Just to remind the parties that by order of the President of the
23 21st of July 2010, this Trial Chamber was assigned to this case for a
24 re-trial. Now today we are having a Pre-Trial Conference, and pursuant
25 to Rule 73 bis the Trial Chamber is required to convene a
1 Pre-Trial Conference prior to the commencement of the trial, and in the
2 course of the Pre-Trial Conference, having heard the Prosecution, the
3 Chamber may determine the number of witnesses the Prosecution may call,
4 the time available to the Prosecution for presenting evidence, and
5 further the Chamber may call upon the Prosecution to shorten the
6 estimated length of the examination-in-chief for some witnesses and fix a
7 number of crime sites or incidents in respect of which evidence may be
8 presented by the Prosecution.
9 Now, at the Status Conference on the 9th of June, 2011, we
10 confirmed that in accordance with Appeals Chamber decisions of the 31st
11 of May, 2011, the operative indictment in this case is the indictment
12 filed by the Prosecution on the 21st of January, 2011. We have also
13 indicated that the Chamber will not invite the Prosecution to reduce the
14 indictment any further.
15 Are we agreed on that? Mr. Rogers, Mr. Emmerson?
16 MR. ROGERS: Yes, Your Honour.
17 JUDGE MOLOTO: We are agreed?
18 MR. EMMERSON: Yes.
19 JUDGE MOLOTO: Indeed. I presume also -- Mr. Harvey, I see you
20 nodding, and I will record the nod of Mr. Guy-Smith as well.
21 MR. GUY-SMITH: Thank you.
22 JUDGE MOLOTO: You're welcome.
23 Now, the next item I would like to deal with then is the list of
24 witnesses and estimated time for the presentation of the Prosecution
25 case. On the 3rd of December, 2010, the Prosecution filed its pre-trial
1 brief pursuant to Rule 65 ter (E) together with a witness list and an
2 exhibit list. The Prosecution indicated that it intends to call a total
3 of 57 witnesses and estimated that the total time for its case in chief
4 would be 36.5 hours. However, on the 20th of June, 2011, in accordance
5 with the Chamber's order made at the Status Conference on the 9th of
6 June, 2011, the Prosecution filed a revised pre-trial brief. It
7 indicated that it no longer intended to call one witness and I'm not -- I
8 might not be able to pronounce the name of this witness,
9 Ms. Stephanie Schwandner-Sievers so that the total number of witnesses on
10 the Prosecution's list is now 56. On the 27th of June, the Prosecution
11 filed a motion pursuant to Rule 89(F) of the Rules seeking the admission
12 of the evidence of eight witnesses, a motion pursuant to Rule 92 bis with
13 respect to 14 witnesses, and a motion pursuant to Rule 92 ter with
14 respect to eight witnesses. And on the same day the parties filed a
15 joint motion for admission of agreed evidence which we will address later
16 in this hearing.
17 On the 22nd of July, the Chamber issued its decision on the
18 Prosecution motion pursuant to Rule 92 bis, requiring that two of the
19 proposed witnesses give evidence viva voce to appear for
20 cross-examination and granting in principle the motion with respect to
21 the remaining witnesses. The Chamber will issue decisions on the
22 Prosecution's motions pursuant to Rule 89(F) and Rule 92 ter in due
23 course. We can indicate today that the decision pursuant to Rule 92 ter
24 should be expected in the course of this week.
25 Mr. Rogers, are you in a position to provide revised estimates
1 for the case in chief for the Prosecution in the light of the above
3 MR. ROGERS: Your Honours, I think we can reduce the amount of
4 time we will need with Mr. Stijovic and Mr. Zyrapi. I don't think we
5 will require as much as we have indicated. I think we may have indicated
6 as much already to the Chamber. So we can reduce that down. But apart
7 from that, I don't think we can trim anything more off of the case as we
8 have already indicated. It's, if I may say, with respect, Your Honours,
9 it is already a fairly trim case. We've done everything we can to give
10 reasonable and modest time estimates, understanding how some of the
11 witnesses may develop. It may be a little more time will be required
12 with some of them and less with others. And that may be the give and
13 take in the court proceedings, but I really have done my best to make it
14 as short as we can. Apart from those two, I don't see any real reduction
15 in the Prosecution time that I can offer to the court.
16 JUDGE MOLOTO: Thank you, Mr. Rogers.
17 Mr. Emmerson, any comments from the Defence?
18 MR. EMMERSON: Your Honours, save this that we have been in
19 discussions, that's to say the Defence and the Prosecution, during the
20 course of this morning just before Your Honours came into court, and it
21 is likely, I will say no more at this stage, that some of the witnesses
22 in relation to whom it is currently anticipated that they will attend to
23 give evidence live will no longer be required to give evidence live. Can
24 I leave it in that way; in other words, the witness list may in fact
25 shorten, that's shortened by agreement.
1 JUDGE MOLOTO: The Chamber is very grateful to you, Mr. Emmerson
2 and while you're standing, may I just mention something that I was remiss
3 of, congratulations on your appointment as the Rapporteur -- United
4 Nations Rapporteur on Terrorism. My -- have I got it partly correct?
5 MR. EMMERSON: Yes, thank you very much.
6 JUDGE MOLOTO: Thank you so much. I hope your obligations with
7 them will not sort of interfere with your job with here.
8 MR. EMMERSON: No, and vice versa.
9 JUDGE MOLOTO: Thank you so much. And vice versa indeed.
10 Mr. Guy-Smith.
11 MR. GUY-SMITH: That was an accurate statement as to where we
12 stand right now.
13 JUDGE MOLOTO: Mr. Harvey.
14 MR. HARVEY: It was indeed.
15 JUDGE MOLOTO: Thank you so much.
16 Then that completes the item on the witness list.
17 The next item is disclosure. Now, at the Status Conference on
18 the 9th of June, 2011, you also confirmed that there were no outstanding
19 issues regarding disclosure pursuant to Rule 66(A) and (B) and 68 at that
20 time. Is there anything that the parties wish to raise in relation to
21 disclosure? Mr. Rogers.
5 JUDGE MOLOTO: Thank you, Mr. Rogers. We will hear you at that
7 MR. ROGERS: The only other matter, Your Honour, of course, is
8 the material which remains to be disclosed to the Defence pursuant to the
9 delayed disclosure orders of the Chamber, but apart from that, as far
10 as -- that's all.
11 JUDGE MOLOTO: Thank you so much.
12 Any comments from the Defence?
13 Mr. Emmerson.
14 MR. EMMERSON: Your Honour, that's an accurate statement of the
15 position as it stands at the moment. It is likely, though, consistent
16 with the Prosecution's duty of continuing review, that there will be
17 further requests for disclosure, in particular in relation to Witness 81.
18 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
19 Mr. Guy-Smith.
20 MR. GUY-SMITH: Yes, with regard to Witness 81, as I understand
21 the present state of affairs the Prosecution has launched another ex
22 parte request. There has not been --
23 JUDGE MOLOTO: How do you know of this ex parte request?
24 MR. GUY-SMITH: Because Mr. Rogers had just so indicated.
25 JUDGE MOLOTO: Okay.
1 MR. GUY-SMITH: There has been further delayed disclosure with
2 regard to this witness. It's my understanding that the disclosure
3 obligations as regard Witness 81 should have been completed by this time,
4 and I don't know whether there's been an order issued with regard to any
5 subsequent delayed disclosure requests by Mr. Rogers or not. It's my
6 position that whatever disclosures exist for Mr. -- from Mr. Rogers with
7 regard to Witness 81 should be in our hands at this time pursuant to
8 previous rulings by this Court.
9 JUDGE MOLOTO: Thank you. You were not asking the Chamber to
10 tell you whether or not it has or has not been issued. You were just
11 wondering if it has been issued, isn't it?
12 MR. GUY-SMITH: Well, you know me well enough to know that I'm
13 always curious as to what the state of affairs is, but I'm not making --
14 I'm not asking -- I'm asking the Chamber not to go outside of its own
15 rules and regulations. Of course not.
16 JUDGE MOLOTO: You know me very well that I always try to curtail
17 your curiosity.
18 MR. GUY-SMITH: Yes, indeed so.
19 JUDGE MOLOTO: Thank you so much.
20 Mr. Harvey.
21 MR. HARVEY: Your Honour, only subject to materials received
22 today which I may have a further disclosure request on, there is nothing
23 else outstanding. Everything else that has been said to Your Honours
24 reflects the position as I understand it.
25 JUDGE MOLOTO: Do I understand you very well, there is some
1 material that you received today and you might have further request on
2 disclosure on that matter? Do you want to make that request now or are
3 you able to make it at a later stage?
4 MR. HARVEY: I will make it at a later stage.
5 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
6 MR. HARVEY: Thank you.
7 JUDGE MOLOTO: That being the case then, does that dispose of
8 that item? No further comments on that.
9 The next item relates to agreed facts. On the 19th of November,
10 2010, the parties filed a joint submission on the existence of an armed
11 conflict in Kosovo and only the 27th of June, 2011, the parties filed a
12 joint motion for admission of agreed evidence. Are there any matters in
13 respect of which the parties have been able to reach an agreement since
14 that submission?
15 Mr. Rogers.
16 MR. ROGERS: Your Honour, there's no further developments in that
18 JUDGE MOLOTO: Thank you so much.
19 Mr. Emmerson, any comment?
20 MR. EMMERSON: Well, Your Honour, the position is that on the
21 11th of November the Defence on behalf of Mr. Haradinaj served proposed
22 agreed facts running to 89. We are yet to hear a response from the
23 Prosecution. So the ball is very firmly in Mr. Roger's court.
24 JUDGE MOLOTO: We will revert to Mr. Rogers soon.
25 Mr. Guy-Smith.
1 MR. GUY-SMITH: I believe that we have similarly sent to the
2 Prosecution proposed agreed facts from which we have not received any
4 JUDGE MOLOTO: Mr. Harvey.
5 MR. HARVEY: Nothing further.
6 JUDGE MOLOTO: Mr. Rogers, any response to those two comments?
7 MR. ROGERS: No, Your Honours. We couldn't agree to the agreed
8 facts that were submitted because we didn't agree to them and there is no
9 further state that we can take. Now, it may be that we can discuss
10 matters further, but in the light of the admission of evidence relating
11 to both the armed conflict and also relating to the underlying materials
12 concerning the forensic, it perhaps is rather redundant that we now seek
13 to reach agreement on agreed facts.
14 JUDGE MOLOTO: As I understand the two Defence lawyers, they were
15 at least respecting a response from you, even if to say, sorry, I can't
17 MR. ROGERS: Your Honour, forgive me, I think I did respond at
18 the time to say that we weren't able to agree those agreed facts because
19 we, at that time if Your Honour remembers, we were trying to deal with
20 the armed conflict issue, and the only thing that came out of our
21 exchange of proposals was the one agreed fact relating to the armed
22 conflict --
23 JUDGE MOLOTO: Sure, I understand that.
24 Mr. Emmerson, did I misquote you? I thought you said we are yet
25 to hear from the Prosecution about this matter.
1 MR. EMMERSON: Your Honour, as far as I recall the answer that we
2 received was that while the scope of the re-trial remained the subject of
3 dispute before the Appeals Chamber, the Prosecution was not at that point
4 in a position to respond, bearing in mind that these proposals were put
5 forward in November 2010.
6 JUDGE MOLOTO: But the scope of the --
7 MR. EMMERSON: Has now been resolved --
8 JUDGE MOLOTO: Has been resolved.
9 MR. EMMERSON: And I would, with respect, invite Mr. Rogers to
10 revisit the issue because the vast majority of the proposed agreed facts
11 are drawn verbatim from the judgement of the Trial Chamber in the
12 original trial, and it really does seem a little difficult to understand
13 why the Prosecution would have a problem --
14 JUDGE MOLOTO: May I just make this caveat. This is a re-trial
15 de novo.
16 MR. EMMERSON: Yes.
17 JUDGE MOLOTO: As if there was never a trial before. So this
18 Trial Chamber is not going -- is not going to live in the shadow of the
19 original trial.
20 MR. EMMERSON: No.
21 JUDGE MOLOTO: So --
22 MR. EMMERSON: I --
23 JUDGE MOLOTO: -- if you want to propose agreed facts to your
24 opposite number you may do so in the course of your job; however, not
25 linked to the fact that they come from the original trial.
1 MR. EMMERSON: Yes, well just to be clear, of course we all
2 entirely understand that the Bench will approach the issues in this trial
3 afresh and de novo. But that being said, obviously the more the parties
4 are in a position to narrow the issues in dispute --
5 JUDGE MOLOTO: [Overlapping speakers]
6 THE INTERPRETER: The speakers are kindly asked not to overlap
7 for the purposes of the interpretation.
8 MR. EMMERSON: -- by reference to uncontentious findings of the
9 previous Trial Chamber, presumably the better for more -- the position of
10 all the parties and since there are a vast number of findings of the
11 original Trial Chamber which don't in any way impinge on the issues that
12 are in dispute between the parties in this re-trial and therefore in way
13 encroach upon the independence of this Trial Chamber to reach findings
14 de novo, the extent to which it would be of assistance to refer back to
15 the previous Trial Chamber judgement as part of an agreed facts approach,
16 obviously has the capacity simply for reducing the scope for unnecessary
17 evidence and argumentation and re-find these facts in relation to issues
18 that are not properly in dispute in this re-trial.
19 JUDGE MOLOTO: May I just apologise to the interpreters. It was
20 my fault. I will not do it again.
21 I hear perfectly what you say, Mr. Emmerson, and I can see the
22 practicality of your suggestion. What I just am sort of trying to
23 emphasize is for this trial to be perceived as if it's a step-child of
24 the original child. Things might have been said in the original trial,
25 things might have been adjudicated in the original trial. If the parties
1 are still disputing those things, I think the parties are entitled to
2 dispute them here because this trial is going ahead as if no trial ever
3 took place. If, however, by virtue of issues that were covered whilst in
4 that trial the parties are able to come together and have their minds
5 meet, so be it.
6 MR. EMMERSON: Well, I'm -- feel confident that we are
7 approaching the scope and approach of the re-trial from precisely the
8 same perspective.
9 JUDGE MOLOTO: Thank you so much.
10 Mr. Guy-Smith.
11 MR. GUY-SMITH: Just taking in mind the discussion you just had
12 with Mr. Emmerson, specifically I would agree with what Mr. Emmerson has
13 said and I understand precisely the Chamber's position. I would point
14 out that the matters -- some of the matters that we are discussing are
15 matters that were not appealed by either party, and with regard to those
16 issues, they are then final judgements and final findings of facts. So
17 to that extent, to the extent it can be of assistance to this Chamber
18 since in fact these are not matters of dispute, it would seem -- it would
19 seem that it would make some sense in that specific limited regard to
20 take not necessarily a total moment from but in a certain sense take
21 certain guidance from that which is no longer part of this particular
22 re-trial. There are a number of facts that exist which are pretty
23 plainly understood and have been plainly dealt with previously that we
24 are attempting to seek agreement. Nothing more, nothing less.
25 JUDGE MOLOTO: Mr. Guy-Smith, let me just say this, I perfectly
1 accept that some issues may not have been appealed and therefore they are
2 res judicata and that therefore they are facts. However, this Tribunal
3 has a mechanism for presenting that kind of -- those kind of facts to the
4 Court and they come by way of adjudicated facts. If there is no
5 agreement -- the fact that matters have been finalised in court doesn't
6 mean necessarily that all parties agree with the finding and if the other
7 party says, I'm sorry, I can't let those facts come in by way of
8 agreement you have a remedy, sir, by way of adjudicated facts.
9 MR. GUY-SMITH: I most certainly appreciate that, Your Honour.
10 JUDGE MOLOTO: So the fact that they have not been appealed
11 doesn't mean that everybody agrees on those facts.
12 MR. GUY-SMITH: Absolutely understood, and we are in total
13 agreement with the state of the law in this regard. But the hope, of
14 course, is that the Prosecution will be reasonable with us here so that
15 we can focus on the issues --
16 JUDGE MOLOTO: I will not comment on the reasonableness of either
17 party. I believe that all are -- all people here are reasonable.
18 MR. GUY-SMITH: One would hope.
19 JUDGE MOLOTO: One would hope.
20 Mr. Harvey.
21 MR. HARVEY: I'm reasonably in agreement with that, thank you
22 Your Honour.
23 JUDGE MOLOTO: I appreciate your reasonableness, Mr. Harvey.
24 Mr. Emmerson.
25 MR. EMMERSON: Before Your Honour returns to Mr. Rogers, perhaps
1 rather clumsily, what I was seeking to indicate at the outset is that
2 before the Defence are in a position to evaluate the necessity for a
3 motion on adjudicated facts we have to have a categorical response from
4 the Prosecution as to whether those facts upon which the previous
5 Trial Chamber adjudicated and which are put forward for the purposes of
6 agreement as agreed facts in a document served upon them some nine months
7 ago, whether in the light of the scope of the trial as it now is, they
8 are in a position to agree those facts; that is to say, those that are
9 directly sourced, lifted verbatim from the original trial judgement or
10 whether it's necessary for us to place before this Trial Chamber
11 Trial Chamber adjudicated facts --
12 JUDGE MOLOTO: I understand you perfectly, Mr. Emmerson, thank
13 you so much, which is why I asked Mr. Rogers if he has at least favoured
14 you with the courtesy of a response even if to say I disagree.
15 MR. EMMERSON: So I would -- at this stage, now that we know --
16 JUDGE MOLOTO: I will go back to him --
17 MR. EMMERSON: Now that we know the scope of the re-trial, I'd
18 simply put down a marker to say this: We would invite the Prosecution to
19 reconsider and confirm what their position is in respect of the
20 particular agreed facts put forward rather than to treat
21 them compendiously, to look at them individually, those that are sourced
22 in the original Trial Chamber judgement, to take a view in relation to
23 it, and to make that clear, let us say within seven days. Thereafter, if
24 it remains necessary to do so, we will file a motion for adjudicated
1 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
2 Mr. Rogers, do you have any response to that?
3 MR. ROGERS: Yes. Your Honour, one of the difficulties in this
4 particular case has been the three defendants approach things - and I
5 don't mean this critically - approach things from different angles, and
6 what one might agree the others may not, and it really needs to be
7 something from all three defendants that is capable of agreement,
8 otherwise the Court will have to litigate it anyway. So it seems to me
9 sensible for the three accused' representatives to put their heads
10 together, come up with a set of agreed facts that they are all capable of
11 agreeing, because otherwise no point with me agreeing it with one if the
12 other two won't agree it, and then advance their joint agreed facts
13 document to me and then I will look at it. This has been, with respect
14 to my learned friends, and again it's not a criticism, as I understand
15 the particular difficulties of litigating from the Defence perspective,
16 they have to really try to reach an agreement between themselves to put
17 forward the materials that we are capable or may be capable of agreeing
18 and then we can take it from there.
24 JUDGE MOLOTO: Can we move into private session.
25 MR. ROGERS: Yes.
1 JUDGE MOLOTO: May the Chamber please move into private session.
2 [Private session]
24 [Open session]
25 THE REGISTRAR: Your Honours, we're back in open session.
1 JUDGE MOLOTO: Thank you so much.
2 Yes, Mr. Emmerson.
3 MR. EMMERSON: Your Honours, simply this: I understand
4 Mr. Rogers' plea for tidiness. There are in reality three sets of agreed
5 facts put forward by the three accused, but as far as I understand it
6 there is unlikely to be the slightest dispute between us, and we would
7 undertake, therefore, by the close of business today, unless anybody
8 dissents, to indicate to Mr. Rogers that the three separate documents can
9 be treated by him as a compendious document and we would invite a
10 response as I said within seven days.
11 MR. GUY-SMITH: I concur.
12 MR. HARVEY: In full agreement. Thank you.
13 JUDGE MOLOTO: That's where we stand, Mr. Rogers, and you will
14 perhaps -- might have to give a response to your colleagues the best way
15 you will receive it.
16 MR. ROGERS: Yes, I will and I'm very grateful for the agreement
17 that was reached very swiftly.
18 JUDGE MOLOTO: Thank you so much.
19 Okay. That disposes the question about agreed facts. Can we now
20 deal with the guide-lines that were circulated to the parties. Now, on
21 the 22nd of July, 2010, the Chamber circulated - is it 2010 or 2011? -
22 through its Legal Officer proposal for guide-lines on notice and
23 presentation of evidence and invite the parties to comment on the
24 guide-lines. The three Defence teams responded on the 15th of August,
25 the Prosecution on the 16th. The three Defence teams objected to the
1 proposed requirement for a 24 hour notice of documents to be used in
2 cross-examination, that's paragraph 3 of the proposed guide-lines. The
3 Balaj Defence raises objections in particular to paragraph 8 of the
4 guide-lines according to which a party cross-examining a Rule 92 bis
5 witness shall limit its cross-examination to the matters in respect of
6 which cross-examination has been ordered. The Chamber does note the two
7 rules or sub-rules that the Balaj Defence refers to. I personally seem
8 to understand 90(H)(i), but I'm not quite sure 90 bis (C) how it
9 operates, but I'll re-study it. And the Balaj Defence also proposes a
10 new rule according to which second degree or multiple hearsay evidence is
11 inadmissible. The Prosecution opposes this proposal. And the Brahimaj
12 Defence seeks confirmation in relation to paragraph 10 of the proposed
13 guide-lines to the effect that cross-examination of a Rule 92 ter witness
14 falls into the category allowing for the time for cross-examination to
15 exceed the time for examination-in-chief.
16 Have I captured the stand of the parties accurately?
17 Mr. Rogers.
18 MR. ROGERS: Yes, Your Honour has, yes.
19 JUDGE MOLOTO: You confirm, Mr. Emmerson?
20 MR. EMMERSON: Your Honour, yes. I don't know whether
21 Your Honour wishes to hear submissions in relation to point 3 --
22 JUDGE MOLOTO: I will -- we will come to that. I just wanted to
23 know have I captured it correctly.
24 MR. EMMERSON: Yes.
25 JUDGE MOLOTO: And you confirm that too?
1 MR. GUY-SMITH: You have, yes.
2 JUDGE MOLOTO: And you too, Mr. Harvey.
3 MR. HARVEY: Yes, thank you.
4 JUDGE MOLOTO: Point 3, I think I can take the Defence point on
5 that point and I believe, my fellow Judges also do. However, what is
6 good for the goose is good for the gander. You will at some stage or you
7 might at some stage lead evidence and the Prosecution might have to
8 cross-examination, it will also be the same rule.
9 MR. EMMERSON: Precisely, I would expect that.
10 JUDGE MOLOTO: Now, would you like us to amend the guide-line to
11 say you give notice of your exhibits at the beginning of
13 MR. EMMERSON: I think there were two different ways in which
14 this problem has been resolved in different trials. One is to say after
15 examination-in-chief has begun and the other is to say at the moment of
16 the beginning of cross-examination. Logically it really ought to be the
17 latter if the aim of postponing disclosure is to be properly maintained.
18 In other words, so that the Prosecution -- I mean, it may seem a little
19 fanciful, but it is not entirely beyond the bounds of possibility that a
20 Prosecutor alight to the documents that are likely to be put in
21 cross-examination would materially alter the scope of
22 examination-in-chief in order to anticipatorily deal with those matters.
23 And since the purpose of a delayed disclosure is to allow
24 cross-examination to be at its most effective in order to give the
25 Trial Chamber the best possible impression of seeing a witness's response
1 when first confronted unexpectedly with the document, it would seem that
2 the logical solution should be at the moment cross-examination begins.
3 JUDGE MOLOTO: And that was in fact your submission.
4 MR. EMMERSON: I think different proposals have been put forward.
5 That is our submission.
6 JUDGE MOLOTO: [Overlapping speakers]
7 And I would imagine that your submission would actually cover the
8 proposals of the other two Defence teams because the other two Defence
9 teams it gives them a little bit of leeway.
10 MR. GUY-SMITH: That's correct. But my submission is immediately
11 before cross-examination.
12 JUDGE MOLOTO: Yes. Thank you very much, Mr. Guy-Smith.
13 Mr. Harvey.
14 MR. HARVEY: I'm with Mr. Guy-Smith on that proposal.
15 JUDGE MOLOTO: Do you have any comments, Mr. Rogers?
16 MR. ROGERS: Yes, I do. Mr. Emmerson's original position of
17 course was that he was content for disclosure at the beginning of
18 examination-in-chief for the reasons that he said primarily the concern
19 is that one would pre-prepare a witness during the course of proofing to
20 deal with the documents, and as such once the witness is sworn that
21 wouldn't be possible, and therefore there is no objection from him at
22 that point in time for it to be disclosed at the start of
24 Your Honours, we would -- we would prefer the 24 hours because it
25 does give us an opportunity to look at the documents, to identify any
1 rebuttal material that there may be, and for us to prepare ourselves to
2 deal with the witness and to deal with any answers or to consider or to
3 think about the re-examination that we may wish to undertake with the
4 witnesses. The suggestion of not allowing us to see them earlier is
5 really is suggesting that we would try to do something improper with the
6 witness. I don't think my learned friends want to put that so strongly,
7 but really that's what's sitting underneath their concern.
8 Your Honours, so we would prefer the original view of the Chamber
9 for 24 hours' notice because it does assist us to prepare the case
10 effectively to deal with any matters that arise. If not, then we would
11 prefer again for it to be at the beginning of examination-in-chief, which
12 again gives us a little more time to try to find the materials, look at
13 the documents.
14 Your Honours, can I say one of the particular difficulties here
15 is the nature of much of this evidence is likely to be 92 ter and really
16 there won't be any examination-in-chief, and so the documents will
17 arrive, examination-in-chief will be over, and during the course of the
18 cross-examination one's having to not only listen to the answers but look
19 at the documents and try to look into them to see if there is any other
20 material which may rebut or may provide an alternative explanation to the
21 material that's identified. And my learned friends know perfectly well
22 that in cases of this size with a huge amount of documentation that
23 exists, that takes an amount of time for both sides to do in fairness.
24 And, Your Honour, I think if it's provided too late, the risk is
25 witnesses end up being re-called in order to deal with new material
1 that's just been discovered that if one had had sufficient notice one
2 would have been able to deal with in evidence when the witness was before
3 the Court.
4 I think it depends a little on how one views the adversarial
5 process or the process that the Court is adopting. If one's looking at
6 it as an opportunity to try to establish the full picture from the
7 witness, then there really is no objection to notice being given to the
8 Prosecutor of the material that intends to be used. If one is looking at
9 it perhaps in a more challenging way, then the traditional common law
10 approach of rabbits out of hats and startling opportunities for witnesses
11 may be more favourable. Your Honour, I think in the more mature system
12 one is looking at more maximum notice, and I would ask for as much notice
13 as the court considers appropriate.
14 MR. EMMERSON: Can I respond very briefly.
15 JUDGE MOLOTO: By all means, Mr. Emmerson.
16 MR. EMMERSON: First of all, it had never been the position of
17 the Haradinaj Defence that the beginning of examination-in-chief was
18 preferable, it was simply the submission in the e-mail that was sent to
19 the Court that that was the position that had been adopted by previous
20 Trial Chamber trying this case. And as Your Honour rightly pointed out,
21 this is not the step-child of the previous trial, but that being said
22 Mr. Rogers' suggestion that this is a case where there's likely to be a
23 large amount of 92 ter evidence and therefore no examination-in-chief
24 rather undercuts the proposition that the time-frame should be the
25 beginning of examination-in-chief rather than cross-examination because
1 if he's right that there's not going to be any examination-in-chief those
2 two will collapse into one and the same.
3 And finally this, when this matter was discussed in the previous
4 trial, it was discussed in writing, the detailed motion, in which both
5 parties explained their respective positions rather like Mr. Rogers has
6 just sought to do on the back of an envelope by suggesting that there is
7 something immature about trial by ambush or pulling rabbits out of hats
8 and to which the Defence responded in writing at some length examining
9 the history and value of cross-examination to the adversarial trial
10 process. These are adversarial proceedings and it's long been recognised
11 in all jurisdictions which adopt adversarial proceedings that getting at
12 the truth is very often most effectively achieved by seeing a witness's
13 first reaction when confronted.
14 Now, it's wrong to suggest that for us to insist on disclosure at
15 that moment, in other words, at a time when it could not materially
16 affect the witness's prior testimony, somehow implies impropriety on the
17 part of the Prosecution, because were Mr. Rogers to get what he seeks,
18 which is 24 hours' notice of the very issues that are going to be put to
19 confront and challenge these three key witnesses, there would be nothing
20 improper in him using that material in a proofing session in forewarning
21 the witness and asking for their comments on the material which is likely
22 to be put to them in cross-examination. It wouldn't be coaching, it
23 would be asking for their prior response and thereby depriving the
24 Trial Chamber of the very tool that it most accurately and acutely needs
25 in assessing whether they're telling the truth or not.
1 JUDGE MOLOTO: Any further comments, Mr. Guy-Smith?
2 MR. GUY-SMITH: I recently finished a trial -- I recently
3 finished a trial which I believe that you were intimately involved in.
4 This was a procedure that we used. The documents that were involved in
5 that case are vastly greater than the documents that will be involved in
6 this case, the magnitude, the sheer magnitude of paper. And if the
7 Chamber may recall, nary a witness was recalled, not one witness was
8 recalled as a result of this particular procedure being used in that
9 case. It was sauce for the goose and for the gander. It worked
10 efficiently, it worked expeditiously, and I see no reason for it not to
11 be used again.
12 JUDGE MOLOTO: And what was that procedure?
13 MR. GUY-SMITH: That procedure was immediately before
14 cross-examination. That was the procedure that I submitted in the
15 proposed modification that I made.
16 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
17 Mr. Harvey, do you have any final word on this?
18 MR. HARVEY: Nothing to add, thank you.
19 JUDGE MOLOTO: I guess on this issue specifically the Chamber
20 will reserve its decision and will confer and will come back to the
21 parties about it okay.
22 MR. ROGERS: Yes, Your Honour. May I just raise one matter about
23 the scope of 92 ter in particular because it may impact upon
24 Your Honours' decision.
25 Your Honour, our understanding is that the Tribunal's and
1 Chambers in this particular Tribunal do permit some scope for
2 examination-in-chief even with a 92 ter witness beyond merely reading out
3 the summary. And I was just going to raise, it may be a convenient
4 moment to deal with it, Your Honours' understanding of how paragraph 7
5 would work in practice because on one view it would appear that the only
6 thing that could be dealt with during the course of 92 ter evidence would
7 be the reading out of the summary, but clearly when one is tendering
8 documents through a witness - and I have in mind in particular
9 Mr. Zyrapi, it would take a while to go through those documents with the
10 individual to tender them into evidence. And I'm anticipating that
11 Your Honour would be permitting a certain amount of scope for
12 examination-in-chief even with a 92 ter --
13 JUDGE MOLOTO: Very limited.
14 MR. ROGERS: -- witness to clarify any matters, a certain amount
15 of settling is normal with witnesses who have just come into the witness
16 box, and then to deal with any documents that need to be produced through
17 the witness. That's my understanding of how the Chamber is likely to
18 proceed. If I might just confirm that's the case. And if not, what Your
19 Honours' views would be so that we can modify our procedures accordingly.
20 JUDGE MOLOTO: Did you say you might just confirm, or do you want
21 the Chamber to confirm for you?
22 MR. ROGERS: Yes, please. If you might just confirm for me, that
23 is you, the Chamber, might just confirm for me my understanding.
24 JUDGE MOLOTO: I would imagine that that would be so said.
25 MR. ROGERS: Thank you.
1 JUDGE MOLOTO: Particularly where there are a number of exhibits
2 to be tendered in because they would have to be tendered in one by one.
3 MR. ROGERS: Exactly. Thank you.
4 JUDGE MOLOTO: Indeed.
5 MR. ROGERS: I'm grateful.
6 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
7 MR. GUY-SMITH: Yes, if I'm right with regard to the specific
8 issue at hand, I believe that the testimony of at least one witness who
9 the Prosecution intends to introduce by way of 92 ter is a situation in
10 which the witness has already been extensively examined about each and
11 every document that is part of their 92 ter statement. If such is the
12 case, then there will be no reason for there to be any further
13 clarification or examination on those documents because it had already
14 been done in a previous proceeding and/or through previous statements,
15 where the explanation had been made.
16 JUDGE MOLOTO: I'm not quite sure I understand what you mean by
17 previous proceeding.
18 MR. GUY-SMITH: Well, in the previous trial.
19 JUDGE MOLOTO: I'm sorry, Mr. Guy-Smith, I've got to repeat that.
20 We are not in the shadow of the previous trial.
21 MR. GUY-SMITH: I appreciate that, but I --
22 JUDGE MOLOTO: This Trial Chamber must determine independently
23 the admissibility of every exhibit that is tendered into evidence.
24 MR. GUY-SMITH: That's not what I'm suggesting, Your Honour.
25 JUDGE MOLOTO: Okay.
1 MR. GUY-SMITH: What I'm suggesting is, as we both know, a 92 ter
2 witness takes the stand, the questions are asked of that 92 ter witness,
3 which is: Will you -- do you adopt the statement that you made
5 JUDGE MOLOTO: Statement, not proceeding, yeah.
6 MR. GUY-SMITH: Statement. In this situation it would be a
7 statement under oath. In this situation what you have is you have a
8 witness who has been previously shown an exhibit, which is now part and
9 parcel of that 92 ter statement, which he is now once again adopting, and
10 when the admission is brought by the Prosecution, they will be admitting
11 wholesale, I would think, and perhaps I'm incorrect, they will be
12 admitting wholesale all of those exhibits that were previously the
13 subject matter of this particular witness's testimony and/or statement,
14 however you wish to characterise it. Therefore, the notion that there
15 will be further explanation with regard to those exhibits means in
16 essence that the witness is a viva voce witness and not a 92 ter witness,
17 and there is a distinction between the two and the reason that we have
18 the 92 ter rule is to expedite proceedings. If the Prosecution wishes to
19 call the witness as a viva voce witness, then they should do so. If
20 they're using the 92 ter procedure which has happened often, hopefully
21 will not happen in this particular trial, as a manner to get around the
22 viva voce time concerns, that should not be allowed.
23 MR. ROGERS: Your Honour --
24 JUDGE MOLOTO: I think --
25 MR. ROGERS: -- before you speak, may I just reassure
1 Mr. Guy-Smith that it's not our intention to go through all of the
2 exhibits all over again. It's to deal with the new material that we have
3 identified on the 65 ter exhibit list. One of the dangers I think of
4 dealing with things in abstracto, as we sort of are a little bit, is that
5 perhaps we can become concerned about matters that actually aren't going
6 to happen in reality. I was simply seeking some general understanding of
7 Your Honours' views about how to deal with 92 ter, and I was expecting
8 that we might deal with any specific objections as and when the witnesses
9 came to testify. But if it helps Mr. Guy-Smith, I can tell him that
10 that's -- we don't intend to abuse Rule 92 ter to get around the viva
11 voce time-limits because we've already shrunk our case to 36 hours and
12 I'm not sure it would be of much use trying to do that. So I hope that's
13 some reassurance to him that we don't intend to do what he thinks we
15 JUDGE MOLOTO: Well, you just took the words out of my mouth. I
16 was going to say to Mr. Guy-Smith that we will deal with these issues as
17 and when they arise as we go along because right now, as you rightly say,
18 we are just arguing in the air and we don't have a concrete problem for
19 us that we need to solve. I would imagine that as we go along the
20 Chamber will rule in the interests of justice on how to deal with each
22 MR. GUY-SMITH: I appreciate, Your Honour, but as a matter of
23 fact we do have a concrete problem because we have not received 92 ter
24 statements from some of these proposed witnesses with regard to the - as
25 Mr. Rogers has put it - the new evidence, so we don't know what the new
1 evidence is that he's referring to.
2 JUDGE MOLOTO: That's only reason why we can't even begin to
3 talk. Let's talk when we have the new evidence.
4 MR. EMMERSON: Your Honour, can I just make one observation which
5 perhaps can be made --
6 JUDGE MOLOTO: Yes, Mr. Emmerson.
7 MR. EMMERSON: -- in principle, and it may seem an obvious one
8 but since we're in the business of setting out what our understanding of
9 the procedure is likely to be in view of the very unusual circumstances
10 in which this trial comes to be conducted, and of course mindful of the
11 fact that we are not a step-child, nonetheless with those witnesses who
12 are brought by the Prosecution for a second time in order to give
13 supplementary evidence, it is certainly my understanding of the most
14 efficient and ordinarily conduct of these proceedings that since the
15 Prosecution have also sought to introduce via 92 ter the transcripts of
16 the evidence that the witnesses gave, including cross-examination at the
17 original trial as part of their testimony, that it would be unnecessary
18 as a duplication of effort and expense for cross-examination to be
19 repeated on the same topics; in other words, it would not be my intention
20 to re-cross-examine any witness who gave evidence at the original trial
21 on the topics or in the manner that I cross-examined him at the original
22 trial, instead relying and standing upon the cross-examination and
23 answers given at the trial number one. Failing that, otherwise you'll
24 simply be re-hearing cross-examination that's already been dealt with.
25 Obviously if there's new material that the witness is now being called to
1 produce, then cross-examination may be directed to the new material, but
2 in truth that's the only fresh evidence being put before this
3 Trial Chamber. That same witness will then be adopting the evidence that
4 they gave at the previous trial, which of course includes the evidence
5 that they gave under cross-examination.
6 And so if I can just put it bluntly -- I mean, to take an
7 example, there is one witness who is going to be giving evidence before
8 you about the production of intelligence documents by the Serbian
9 intelligence services. At the original trial under cross-examination he
10 acknowledged that the statements had been obtained through a combination
11 of torture, blackmail, and bribery. I don't propose to re-traverse that
12 general methodology. It is there on the transcript for all to see. And
13 so if I can indicate that my general approach will be simply to adopt the
14 cross-examination and evidence given in answer to cross-examination at
15 the original trial in respect of evidence given at the original trial and
16 to confine my cross-examination in the interests of efficiency and in the
17 interests of justice to any new matters that the witness might now be
18 being called to testify about over and above that which they were called
19 to testify about at the original trial.
20 JUDGE MOLOTO: Let me just say before Mr. Guy-Smith stands up
21 that I appreciate what you say; however, with the caveat that I put
22 earlier that we are not in the shadow of the previous trial, I do not
23 think it is for the Chamber to comment on how the Defence must conduct
24 its case. But as I say, I appreciate the fact that you are contributing
25 towards the expeditiousness of the trial, and to that extent I'm very
1 grateful and I'm sure the Chamber is. But you are not limited in what
2 questions you would like to ask as a cross-examiner within the bounds of
3 the Rules.
4 MR. EMMERSON: No, I appreciate that. But it could -- just to
5 tease this out just a little further, there could possibly be a
6 misunderstanding as between Your Honour and myself. I will treat
7 questions asked and answers given at the original trial which are being
8 admitted pursuant to Rule 92 ter with equal evidential status and weight
9 as a question and answer put to the witness in these proceedings. And on
10 that understanding, I hope it will be possible to proceed expeditiously.
11 JUDGE MOLOTO: Certainly if a transcript is admitted, that will
12 be taken as it stands.
13 MR. EMMERSON: I'm grateful.
14 JUDGE MOLOTO: Thank you so much.
15 Yes, Mr. Guy-Smith.
16 MR. GUY-SMITH: And that indeed was the point that I was
17 apparently inartfully - and I apologise for that - trying to make when I
18 initially started this particular journey with you. The issue of whether
19 or not it is appropriate for new evidence to come through a 92 ter
20 witness is presently the subject matter of a pending motion and I will
21 leave it at that for now.
22 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
23 Mr. Harvey, everybody has had his part of the cherry, you don't
24 want to take yours? Okay.
25 As I did say -- are we still on that point, we're still on 3,
1 guide-line 3, the Chamber will decide that and will provide a new
2 guide-line or stick with what we have depending on what we decide.
3 Mr. Guy-Smith, in your objections to paragraph 8, you said you
4 don't want to be limited to the issues raised in examine -- obviously,
5 you might want to cross-examine on credibility which may not necessarily
6 be -- have been canvassed in examination-in-chief. I -- within those
7 rules of cross-examination we understand.
8 MR. GUY-SMITH: Very well.
9 JUDGE MOLOTO: Thank you so much.
10 MR. GUY-SMITH: With that understanding, there's no problem.
11 JUDGE MOLOTO: Thank you so much.
12 Mr. Rogers, you take issue with Mr. Guy-Smith's submission on the
13 inadmissibility of double hearsay. I would like you to start with single
14 hearsay. Are you saying -- I understand that at this Tribunal it is
15 admissible. The question of weight is another matter. Can I hear what
16 you have to say or let the Chamber hear what you have to say on the
17 double hearsay?
18 MR. ROGERS: Your Honour, it's always the same point. It's about
19 weight and the weight that the Chamber is prepared to give to this form
20 of evidence, and it may be that at the end of the day, having heard all
21 of the evidence, the Chamber attributes to it no weight.
22 JUDGE MOLOTO: At all.
23 MR. ROGERS: At all. But it may be that the Chamber attributes
24 to it some weight. It may depend on the other material that is produced
25 during the course of the trial, and I think, respectfully, to try to
1 produce a blanket exclusion at this stage of the proceedings would be --
2 would not be right. It would be wrong. It would be better to receive
3 the evidence that is available and for the Court at the end of the day to
4 determine what weight, if any, it gives to that material.
5 JUDGE MOLOTO: Mr. Guy-Smith, do you have any response to that?
6 MR. GUY-SMITH: Yes, I do. I actually thought long and hard
7 about this and I attempted to take into consideration the precise concern
8 that Mr. Rogers has raised. And if we are to look at this second
9 sentence that I suggested as a rule here, I suggested multiple hearsay
10 and/or unsourced hearsay is inadmissible in the absence of independent
11 objective corroborative evidence. So that --
12 JUDGE MOLOTO: That's a standing rule even first-hand hearsay.
13 MR. GUY-SMITH: Well --
14 JUDGE MOLOTO: Single hearsay, if I can use that term. I don't
15 know what term to use.
16 MR. GUY-SMITH: I think that we all appreciate the difficulty
17 with multiple hearsay because the distinction between multiple hearsay or
18 unsourced hearsay and rumour and gossip is unfortunately virtually
19 indistinguishable --
20 JUDGE MOLOTO: In principle how is single hearsay not rumour or
22 MR. GUY-SMITH: Single hearsay, very simply this: Single hearsay
23 comes from a position where it's an out of court statement which is
24 made -- offered to prove the truth of matters asserted by -- it could be
25 by a single author. For example, I could say Judge Moloto said to me
1 that Mr. Rogers is not being particularly candid. Now, if I were to say
2 such a thing, and I don't think that you would say such a thing nor do I
3 think that Mr. -- the issue was whether or not Mr. Rogers is particularly
4 candid or not, that certainly wouldn't be an issue of rumour. However --
5 however, if I were to say: I have heard in the courtroom or I have heard
6 at the Tribunal that Mr. Rogers is not candid --
7 JUDGE MOLOTO: That's the unsourced --
8 MR. GUY-SMITH: That's the unsourced one.
9 JUDGE MOLOTO: The multiple one. You have heard from Mr. Mair
10 that Judge Moloto said that Mr. Rogers is -- you didn't hear directly
11 from Judge Moloto.
12 MR. GUY-SMITH: Okay. Very well.
13 JUDGE MOLOTO: That's now the multiple --
14 MR. GUY-SMITH: That's your multiple situation, and in the
15 multiple situation it raises a couple of concerns not the least of which
16 being how do I get to investigate it, how do I counter that. What is the
17 evidentiary value, if any, to a fact-finder? And with regard to the
18 issue of weight versus admissibility, and I appreciate and I have full
19 confidence that the Chamber understands how to do its job and that's
20 really not what I'm going after here, but it seems to me that we run
21 dangerously close to being in a situation where the Prosecution is going
22 to bucket-in rumour and gossip, multiple hearsay, unsourced hearsay with
23 regard to ultimately in this -- with regard to ultimately in this case
25 JUDGE MOLOTO: I'm not quite sure what the basis for that
1 submission is.
2 MR. GUY-SMITH: The disclosure that I have received from the
3 Prosecution and I really --
4 JUDGE MOLOTO: Can I suggest --
5 MR. GUY-SMITH: Sure --
6 JUDGE MOLOTO: -- at this point that as and when that happens you
7 jump up, you jump up and object, and let the Chamber rule on that.
8 MR. GUY-SMITH: I'll be more than happy to do that, but I also
9 think that in a responsible sense with regard to an adversarial process,
10 the notion that unsourced hearsay can be given any credence whatsoever
11 from the standpoint of admissibility is something that should be arrested
12 at the front gate. With regard -- I understand your concerns about
13 multiple hearsay, I take a different view, but I don't think I'm going to
14 be particularly successful in arguing through the multiple hearsay by the
15 way that you are looking at me and the kind of conversation we are
17 JUDGE MOLOTO: You are clairvoyant?
18 MR. GUY-SMITH: No, no, I've just -- I've spent a lot of time
19 with you, Your Honour, but I really do believe that with regard to the
20 issue of unsourced hearsay, the dangers of giving it any credence
21 whatsoever far outweigh any utility that it can have to the fact-finder.
22 MR. EMMERSON: Can I just indicate this, the quality of the
23 material that's going to be put before you from, in particular, the
24 witness I adverted to a moment ago from the intelligence services
25 including as it does statements which on their own admission were
1 obtained in the fashion I just described, will, I apprehend, in due
2 course make it entirely clear to Your Honours what it is Mr. Guy-Smith is
3 so anxious about because there will be, and you will see it in due
4 course, just a vast amount of frankly forensic rubbish being put before
5 you in an attempt to create a no-smoke-without-fire-type approach even
6 though the source of it is largely often anonymous and the methodologies
7 by which it has been obtained are amongst the basest for any
8 investigative source in the world.
9 JUDGE MOLOTO: Can I assure the parties that the Chamber will
10 make sure that it adheres to rules of evidence, rules of procedure and
11 the rules of this Court to ensure that only credible, probative, relevant
12 evidence is admitted.
13 MR. EMMERSON: And in effect that is precisely what we would
15 JUDGE MOLOTO: Thank you so much.
16 MR. EMMERSON: And in due course you'll see why we're concerned
17 about it because the sort of material that is going to be put to you
18 falls very short of any of those standards --
19 JUDGE MOLOTO: And in fact that's why we have you here, to make
20 sure that you can either block it at the first gate, front gate, or at
21 the back gate, or the middle gate, whatever gate -- whatever gate you
22 want --
23 MR. EMMERSON: In the end, I apprehend Your Honours will have no
24 problem blocking it somewhere along the line.
25 JUDGE MOLOTO: Sure. Thank you so much. You have something to
1 say? I --
2 MR. ROGERS: Your Honours, I hesitate to say anything more unless
3 Your Honours wish me to, but --
4 JUDGE MOLOTO: I don't necessarily wish you to say anything, but
5 if you have something I don't want to gag you.
6 MR. ROGERS: I'm happy to be gagged.
7 JUDGE MOLOTO: You're happy to be gagged. Mr. Harvey, you
8 don't --
9 MR. HARVEY: I'm happy for him to be gagged as well, Your Honour.
10 JUDGE MOLOTO: What about you, Mr. Harvey?
11 MR. HARVEY: Nothing further. Thank you.
12 JUDGE MOLOTO: You're gagging yourself. Okay.
13 MR. EMMERSON: Can I make just one procedural point for the sake
14 of accuracy. I notice on the transcript, page 31, lines 1 to 7, a
15 lengthy submission of Mr. Rogers is attributed to Your Honour as though
16 it were Your Honour's response to a submission. It's quite important
17 that that be qualified.
18 JUDGE MOLOTO: Indeed, you are very right. I would hate to take
19 credit for Mr. Rogers' brilliant submissions. Line?
20 MR. EMMERSON: Page 31, lines 1 to 7.
21 JUDGE MOLOTO: One to 7. Okay. I guess our stenographer will
22 make note of that.
23 Thank you so much, Mr. Emmerson.
24 Well, then let's leave that point. I need to be reminded, what
25 were we talking about -- oh, the admissibility of hearsay. Maybe the
1 Chamber might confirm for you, Mr. Harvey, that what you asked in
2 relation to paragraph 10, yes, will be taken on board.
3 MR. HARVEY: I'm grateful. Thank you, Your Honour.
4 JUDGE MOLOTO: You're welcome. And I would imagine that that
5 disposes of all the issues that were raised by the parties on this
6 matter? Thank you so much.
7 Item 6 is a joint motion for admission of evidence. On the
8 27th of June, 2011, the parties filed a joint motion for admission of
9 agreed evidence with confidential annex A and public annex B. Annex A
10 contains a list of transcript -- of testimony of witnesses and/or witness
11 statements from the original case, that is the Haradinaj case, and
12 associated exhibits listed in the Prosecution's Rule 65 ter exhibit list.
13 Annex B contains a list of additional exhibits not on the Prosecution's
14 Rule 65 ter exhibit list which the Defence proposes for admission and to
15 which the Prosecution does not object. The Chamber takes note of the
16 content of these documents. It will request the Registry -- the Registry
17 Court Officer, I beg your pardon, to assign a P exhibit number to each
18 document listed in annex A of the joint motion of the 27th of June and a
19 D exhibit number to each document listed in annex B and to notify the
20 parties and the Chambers accordingly. Does that settle it?
21 Mr. Rogers, would that settle it that way?
22 MR. ROGERS: Yes. Thank you, Your Honour.
23 JUDGE MOLOTO: Mr. Emmerson?
24 MR. EMMERSON: Your Honour, yes.
25 JUDGE MOLOTO: And Mr. Guy-Smith?
1 MR. GUY-SMITH: Yes, it does.
2 JUDGE MOLOTO: And Mr. Harvey.
3 MR. HARVEY: Thank you.
4 JUDGE MOLOTO: Madam Registrar, will you please take note of
6 THE REGISTRAR: Your Honours, an internal memorandum will be
7 distributed to the parties with the relevant numbers.
8 JUDGE MOLOTO: Thank you so much, Madam Registrar.
9 Then can we move to item 7, reference to exhibit numbers. It's
10 been brought to the attention of the Chamber that counsel may
11 inadvertently - and I say this with trepidation, I really didn't want to
12 raise this but this is what has been brought to the Chamber's notice.
13 That counsel may inadvertently refer to documents tendered in the present
14 trial by the exhibit number in the original trial which may create
15 confusion. The Chamber would request counsel to pay special attention to
16 this issue and to refer to documents either by their Rule 65 ter number
17 or by the document ID number or by the exhibit number in this case to
18 avoid any possible confusion with documents admitted in the original
19 Haradinaj trial.
20 Is that okay by you, Mr. Rogers?
21 MR. ROGERS: We will do our very best to avoid the pitfalls.
22 JUDGE MOLOTO: Thank you.
23 And Mr. Emmerson.
24 MR. EMMERSON: Yes.
25 JUDGE MOLOTO: And Mr. Guy-Smith.
1 MR. GUY-SMITH: Yes.
2 JUDGE MOLOTO: And Mr. Harvey.
3 MR. HARVEY: Likewise.
4 JUDGE MOLOTO: Thank you so much.
5 Then we move on to opening statements and statements of the
6 accused. Pursuant to Rule 84 of the Rules, before the Prosecution -- the
7 presentation, I beg your pardon, of evidence by the Prosecution each
8 party may make an opening statement. The Defence may, however, elect to
9 make its statement before the presentation of evidence for the Defence.
10 I believe counsel for Haradinaj has indicated informally that it intends
11 to make an opening statement.
12 Thank you very much, Mr. Emmerson, for confirming that.
13 Is any other of the Defence teams in a position to indicate
14 whether it would be making an opening statement tomorrow, Mr. Guy-Smith?
15 MR. GUY-SMITH: It is not our intention to be making an opening
16 statement at the outset of these proceeding.
17 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
18 Mr. Harvey.
19 MR. HARVEY: Neither is it ours. Thank you very much,
20 Your Honour.
21 JUDGE MOLOTO: Thank you so much.
22 Mr. Rogers, are you able to give an indication of the length of
23 the opening statement of the Prosecution?
24 MR. ROGERS: Yes, I am. I think I'll be a couple of hours in
25 opening the case. I have some --
1 JUDGE MOLOTO: That is a couple --
2 MR. ROGERS: About two, between two and three, but I think it's
3 nearer to two than three.
4 JUDGE MOLOTO: Okay.
5 Thank you so much.
6 MR. EMMERSON: And I shall be less than an hour.
7 JUDGE MOLOTO: You will be less than an hour. So it could be
8 three and four. Okay.
9 Now, the Rules also provide for the possibility for the accused,
10 if he so wishes, to address the Chamber after the opening statement of
11 the parties or if the Defence elects to defer its opening statement after
12 the opening statement of the Prosecution. Are any of your accused
13 desirous of making some statements?
14 MR. EMMERSON: Your Honour, no.
15 JUDGE MOLOTO: Not yours.
16 MR. GUY-SMITH: No.
17 JUDGE MOLOTO: Mr. Harvey.
18 MR. HARVEY: No.
19 JUDGE MOLOTO: Thank you so much. It makes life much easier.
20 Item 9, the availability of the Prosecution witnesses scheduled
21 to testify in the first two weeks of sittings. Mr. Rogers, do you wish
22 to make any submissions on the availability of your witnesses scheduled
23 for the first two weeks of trial?
24 MR. ROGERS: Yes, could we go into private session, please.
25 JUDGE MOLOTO: May the Chamber please move into private session.
1 [Private session]
11 Pages 180-199 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we're in open session.
8 JUDGE MOLOTO: Thank you so much.
9 We'll take a break and come back in about 20 minutes.
10 --- Recess taken at 4.01 p.m.
11 --- On resuming at 4.25 p.m.
12 JUDGE MOLOTO: Thank you very much.
13 Just to round off, I wanted to say if I -- and I think I did say
14 it a little earlier, on this point we are just going to have to wait for
15 developments to play themselves out and -- but we are not going to
16 postpone anything or cancel any session, court session. So that if he
17 comes early, we can sit; if he doesn't come early and it's beyond our
18 control, there is nothing we can do about it.
19 MR. EMMERSON: Yes, and plainly there would need to be an
20 application made on his behalf -- I'm sorry, plainly I'm sure
21 Your Honours wouldn't tolerate the tail wagging the dog. There would
22 have to be an application made on his behalf by his counsel for his
23 absence in return -- in response to the subpoena that requires his
24 attendance on Friday.
25 JUDGE MOLOTO: I would imagine that everything is going to be
1 done by the Rules.
2 MR. EMMERSON: Yes.
3 JUDGE MOLOTO: Thank you so much. We close the point now on ...
4 [Trial Chamber and Registrar confer]
5 JUDGE MOLOTO: We were -- we went into open session. That matter
6 is closed. I'm not going to refer to it any longer.
7 Mr. Rogers, we are on the question of the availability of the
8 Prosecution witnesses scheduled for the first week. We have dealt with
9 one. Are you able to tell us any more about the rest?
10 MR. ROGERS: Yes, I'm afraid we will need to go back into private
12 JUDGE MOLOTO: May the Chamber please move into private session.
13 [Private session]
11 Pages 202-204 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we're back in open session.
9 JUDGE MOLOTO: Thank you so much.
10 I know this may not necessarily be provided for in the
11 Pre-Trial Conference, but it's provided for in the Status Conference.
12 But even before I go to the last item, I just do want to ask the accused
13 to say anything they would like to say about their health and their
14 conditions of detention.
15 Mr. Haradinaj.
16 THE ACCUSED HARADINAJ: Everything okay, Your Honour, health and
18 JUDGE MOLOTO: Thank you so much, Mr. Haradinaj.
19 Mr. Balaj.
20 THE ACCUSED BALAJ: [Interpretation] Everything, everything is
21 absolutely fine, Your Honours. Thank you.
22 JUDGE MOLOTO: Thank you so much.
23 And Mr. Brahimaj.
24 THE ACCUSED BRAHIMAJ: [Interpretation] I have nothing further to
25 say. Thank you.
1 JUDGE MOLOTO: Thank you very much.
2 Now, is there any other matter that any of the parties may wish
3 to raise at this stage?
4 Mr. Rogers.
5 MR. ROGERS: Just to raise the issue of Albanian translation. We
6 understand there are very limited translation resources within the
7 Tribunal, and that may cause some difficulties in providing Albanian
8 translations, for example, of proofing notes or that type of material.
9 We will do our best to get those translated as quickly as we can. In
10 terms of providing them to the Defence, as soon as they are available, we
11 will provide them. So they may come on a Sunday evening once they are
12 ready so my learned friends should be aware of that. But as soon as any
13 proofing note is available, it will be provided.
14 JUDGE MOLOTO: Thank you, Mr. Rogers.
15 MR. ROGERS: And I don't know whether -- I see Mr. Guy-Smith, but
16 perhaps I can just deal with one other matter which is photographs and
17 maps. Your Honour, we intend to provide the Chamber with a bundle of
18 photographs and maps relevant to the case. They've all been disclosed,
19 they've all been available to the Defence. So I've mentioned that and it
20 may be helpful for you to have those readily available as opposed to keep
21 trying to find them in e-court. Sometimes it's easier to have them
22 there. The only one that isn't there is a map that I will refer to just
23 by way of opening tomorrow which is a map showing the general locations
24 of the area with some of the geographical detail of the main map removed
25 so it's easier to see, and I will show my learned friends it in advance,
1 but that's all it is, it's just an extract, something that we have
2 created to assist I hope. That's all I think I wanted to raise, yes.
3 JUDGE MOLOTO: Thank you so much, Mr. Rogers.
4 Mr. Emmerson.
5 MR. EMMERSON: [Microphone not activated]
6 JUDGE MOLOTO: Mr. Guy-Smith.
7 MR. GUY-SMITH: Yes, I want to take this opportunity to very
8 briefly alert the Chamber once again to the question that is presently
9 pending in regards to both the Balaj and Brahimaj teams with regard to a
10 meeting so that we can appropriately deal with resources. There are some
11 issues that have arisen, and I'm quite mindful of these issues,
12 specifically with regard to the issue of translation and Albanian
13 interpreters because we actually have somewhat of a solution in terms of
14 the limitations of the interpreter services that presently exist.
15 However, we need to have particular resources in order to be able to
16 assist in that solution because we're about to lose one of our team
17 members, but I think this is a matter that can be taken up outside of
18 these proceedings, but I wish to alert the Court to that.
19 JUDGE MOLOTO: I'm not quite sure I'm grasping exactly what you
20 are saying. You are saying because of resources you are losing somebody
22 MR. GUY-SMITH: Yes, because of resources I'm losing somebody
24 JUDGE MOLOTO: And that person is an Albanian-speaking kind of
1 MR. GUY-SMITH: Well, he's currently volunteering right now. He
2 has been with me since the very first Kosovo case. He is an invaluable
3 resource. He is not only an invaluable resource from the standpoint of
4 his interpretation abilities, he also is a lawyer in his own right and is
5 an individual who has institutional knowledge which is of great
6 assistance not only to my team specifically but to all of the co-accused
7 and has been used in that fashion, but we may be losing him. As a matter
8 of fact I -- at this point I believe we will be losing him unless
9 something can be remedied, but that's something we can deal with away
10 from these proceedings.
11 The other thing I want to raise, and I'm raising this very, very
12 gently and very delicately because it's something that's been repeatedly
13 said at today's proceedings, which is the question of whether or not the
14 Prosecution is bound by that order referring to a previous order. And
15 you had indicated - and it's been said a number of times - that we are
16 not under the shadow of prior proceedings. There is pending litigation
17 which right now is -- exists because of that specific assumption I think
18 that has been between the parties on a number of different occasions,
19 where there have been pre-existing orders made by the Trial Chamber in
20 the first trial that are -- that have been continued in force or have
21 continued to be respected by either the Defence or by the Prosecution
22 with regard to these proceedings. And I wish to just get some
23 clarification because I do not wish to offend at all. But, for example,
24 there's a specific disclosure request that we have and that disclosure
25 request was rejected by the Prosecution based upon a pre-existing order
1 from an original -- from the first Trial Chamber. And I don't want to be
2 arguing back and forth between -- between the two Trial Chambers if
3 that's not the case. So that's why I raise the issue quite gently
4 because this is an area where perhaps -- perhaps Mr. Rogers and I could
5 have some agreement, perhaps not, I don't know. We may still have legal
6 disagreements, but right now part of the argument that is current as an
7 argument, it exists with a pre-existing order.
8 JUDGE MOLOTO: You want clarity from the Chamber?
9 MR. GUY-SMITH: If I -- if I get some kind of just clarifications
10 on that --
11 JUDGE MOLOTO: [Overlapping Speakers] My recollection of the
12 Rules is that the only continuing order that outlives the Chamber from
13 which it came is an order with respect to protective measures. And that
14 one will subsist until ordered, varied, or amended by some other Chamber.
15 Any order that is made in a particular trial for purposes of that trial
16 does not in my interpretation of -- or my understanding of the law, does
17 not bind subsequent Trial Chambers.
18 MR. GUY-SMITH: Very well. I'm clear --
19 JUDGE MOLOTO: Except for the kind of thing that comes from
20 appeal and it's a jurisprudential thing that ties your hands.
21 MR. GUY-SMITH: So apart from any issues concerning res judicata
22 or law of the case I understand that. Very well. Thank you very much
23 for that clarification. I do appreciate it.
24 JUDGE MOLOTO: You're welcome. Are you done? Thank you so much.
25 Mr. Harvey.
1 MR. HARVEY: I have nothing further today. Thank you very much,
2 Your Honours.
3 JUDGE MOLOTO: Thank you very much.
4 Well, there being no further business to conduct, we stand
5 adjourned to the next trial date, tomorrow in the afternoon, Courtroom I.
6 Court adjourned.
7 --- Whereupon the hearing adjourned at 4.40 p.m.,
8 to be reconvened on Thursday, the 18th day of
9 August, 2011, at 2.15 p.m.