120502SE

Page 2727

1 Wednesday, 2 May 2012

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.16 p.m.

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

6 courtroom.

7 Mr. Registrar, please call the case.

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

9 number IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj,

10 Idriz Balaj, and Lahi Brahimaj. Thank you.

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

12 May we please have the appearances for the day, starting with the

13 Prosecution.

14 MR. ROGERS: Yes, good afternoon, Your Honours. Paul Rogers for

15 the Prosecution, together with Ms. Daniela Kravetz and our case manager

16 today, Ms. Line Pedersen.

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

18 And for Mr. Haradinaj.

19 MR. EMMERSON: Good afternoon, Your Honour. Ben Emmerson for

20 Ramush Haradinaj, with Andrew Strong.

21 JUDGE MOLOTO: Thank you very much, Mr. Emmerson. We did get a

22 telephonic apology from Mr. Dixon.

23 Yes, Mr. Guy-Smith.

24 MR. GUY-SMITH: Good afternoon. Gregor Guy-Smith, Colleen Rohan,

25 Holly Buchanan, and Gentian Zyberi on behalf of Idriz Balaj.

Page 2728

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

2 And for Mr. Brahimaj.

3 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey and

4 Luke Boenisch for Mr. Brahimaj.

5 JUDGE MOLOTO: Thank you very much, Mr. Harvey. That was a good

6 one.

7 We are having a Status Conference. This is just to do some

8 administrative work and sort out the way forward from today. Now, on the

9 20th of April, 2012, the last Prosecution witness concluded his testimony

10 and the Prosecution closed its case. And on the 27th of April, upon

11 request by the Chamber, the Defence teams filed written submissions

12 indicating their positions with regard to the further development of the

13 case. The submissions are, A, the Defence notification on behalf of

14 Ramush Haradinaj on Rule 98 bis application and Defence case,

15 Idriz Balaj's submission in response to the Trial Chamber's Scheduling

16 Order on the 23rd of April, 2012, and the submission on behalf of

17 Lahi Brahimaj pursuant to Scheduling Order. Now, in these submissions

18 all three Defence teams indicated that they do not intend to make

19 submissions pursuant to Rule 98 bis. Further requested the Chamber to

20 set a schedule for the closing submissions, that is, the written final

21 briefs and the oral closing arguments.

22 Mr. Haradinaj and Mr. Brahimaj also indicated that they will not

23 be presenting a Defence case, and Mr. Balaj indicated that he may present

24 a limited Defence case on issues related to certain medical documents if

25 no agreement on these documents can be reached.

Page 2729

1 Could I just get from Mr. Guy-Smith what -- whether agreement has

2 been reached.

3 MR. GUY-SMITH: An agreement has not been reached as of yet.

4 Hope springs eternal, and I hope that within the next day or two I will

5 be able to convince Mr. Rogers of the errors of his thinking. In the

6 absence of not being able to do that, I will immediately notify the

7 Chamber as to what our position will be concerning presentation of a

8 limited Defence case. In any event, no matter what occurs, I don't

9 believe that the presentation of a limited Defence case, if necessary,

10 would impact upon the schedule that has been proposed by the parties in

11 the event, obviously, that the Chamber is amenable to such a schedule.

12 JUDGE MOLOTO: Okay.

13 Mr. Rogers, are you able to cast some light on this issue?

14 MR. ROGERS: Your Honour, yes. I haven't been able to reach

15 agreement with Mr. Guy-Smith. He's sent me some documents, I've

16 responded, and as of yet we have no agreement on this issue. I agree

17 that if it is necessary - if it's necessary - to call any evidence, it

18 will be limited. I don't imagine it will take very long to deal with in

19 terms of court time and it may or may not result in us seeking further

20 evidence, but I doubt it, and even if we did, that would also be very

21 short. I don't think it would impact the timetable that we have

22 suggested to the Court. It's a very confined, very limited issue

23 relating to certain medical issues.

24 JUDGE MOLOTO: I understand that, Mr. Rogers.

25 Are there any prospects of you being persuaded to agree or is it

Page 2730

1 just a waste of time. Mr. Guy-Smith might as well put -- mount his case?

2 MR. ROGERS: I need to see medical evidence in a proper form and

3 when I've seen it and it's been presented to me with the medical evidence

4 upon which he wishes to rely, then I can review and decide whether I can

5 reach any agreement relating to it. But I've already responded to one

6 document that's been provided to me and I'm not able, I'm not prepared,

7 to agree to that. Now if he's able to change it, find something else,

8 then I'm always prepared, as I've said to him throughout, to look at it

9 and consider whatever admissions he's proposing to me.

10 JUDGE MOLOTO: Has he indicated that he's got some other medical

11 documentation that --

12 MR. ROGERS: No, not at present.

13 JUDGE MOLOTO: You don't have it, Mr. Guy-Smith, do you? You

14 still have to ask for it wherever it is?

15 MR. GUY-SMITH: Yes and -- yes and -- without litigating the

16 issue before the Chamber, there's certain matters that deal with common

17 sense.

18 JUDGE MOLOTO: I'm not asking you to litigate.

19 MR. GUY-SMITH: I understand.

20 JUDGE MOLOTO: I'm asking you just, you don't have this extra

21 medical documentation --

22 MR. GUY-SMITH: I don't have it -- I don't at this moment have

23 extra medical document.

24 JUDGE MOLOTO: You still have to requisition it from wherever the

25 source is?

Page 2731

1 MR. GUY-SMITH: Correct.

2 JUDGE MOLOTO: You haven't done so yet?

3 MR. GUY-SMITH: It's in process.

4 JUDGE MOLOTO: So when you said earlier you are likely to tell us

5 within a day or two --

6 MR. GUY-SMITH: I am still likely to tell you within a day or

7 two.

8 JUDGE MOLOTO: Thank you so much.

9 Now, we then need to make an order scheduling a dead-line by

10 which Balaj is to file his 65 ter submissions, assuming that you do not

11 get an agreement from the Prosecution. And, Mr. Guy-Smith, are you able

12 to indicate, should there be no agreement, by when you can file your

13 65 ter (G) submissions?

14 MR. GUY-SMITH: I believe I would be able to do that by the mid

15 of next week.

16 JUDGE MOLOTO: Okay. And in that event, we would then need to

17 schedule - I don't know whether we do it right away or we do it later - a

18 pre-Defence conference. And do the parties think that there would be a

19 need for that?

20 MR. GUY-SMITH: I don't believe there would be.

21 JUDGE MOLOTO: That's how --

22 MR. GUY-SMITH: The issues --

23 JUDGE MOLOTO: That's how limited the issues are?

24 MR. GUY-SMITH: That's how limited the issues are. The issue

25 is -- the issue, if need be presented without agreement, would, I

Page 2732

1 believe, take no more than one session in terms of the total presentation

2 of evidence.

3 JUDGE MOLOTO: Okay.

4 MR. GUY-SMITH: And probably even less than that.

5 JUDGE MOLOTO: Now, if you are able to give us 65 ter (G)

6 submissions by the middle of next week, by when could we sit to hear the

7 limited Defence case?

8 MR. GUY-SMITH: That is something that I would have to advise the

9 Chamber. I can't give you that piece of information immediately. I

10 would have to make contact with the witness.

11 JUDGE MOLOTO: Given -- okay.

12 MR. GUY-SMITH: I remain standing because I've -- I think there's

13 another question coming.

14 JUDGE MOLOTO: Yes.

15 MR. GUY-SMITH: Okay. Fine.

16 JUDGE MOLOTO: Indeed, stay standing because the Chamber's trying

17 to think of a way of speeding up this process.

18 MR. GUY-SMITH: If I might, and this may be of some help, I

19 believe that I'm in a position to indicate to the Chamber by Friday which

20 way the winds will blow.

21 JUDGE MOLOTO: Right.

22 MR. GUY-SMITH: If the winds blow in a fashion that requires the

23 presentation of further evidence, then you will have that information by

24 Friday; and if they do not, you will have that information by Friday.

25 JUDGE MOLOTO: I understand that. But, you see, I'm trying to

Page 2733

1 take a couple of steps --

2 MR. GUY-SMITH: Sure.

3 JUDGE MOLOTO: -- at a go. I'm trying to say you tell us by

4 Friday. And if you tell us by Friday, can we schedule a hearing for the

5 limited Defence which we can always vacate if there's no need, rather

6 than wait for you to tell us by Friday and then only schedule at that

7 stage.

8 MR. GUY-SMITH: I think that makes perfectly good sense.

9 JUDGE MOLOTO: Okay. So -- and I'm trying to get from you --

10 MR. GUY-SMITH: I need a calendar.

11 JUDGE MOLOTO: Do you want to borrow mine?

12 MR. GUY-SMITH: Sure.

13 JUDGE MOLOTO: I need you to give us an indication by when you

14 would be ready to mount that case and hear it. And I'm doing all this --

15 MR. GUY-SMITH: Monday, the 14th of May.

16 JUDGE MOLOTO: Monday, the 14th of May. What do I have for my --

17 MR. GUY-SMITH: I'm sorry. I think everything's crossed out for

18 the 14th of May.

19 JUDGE MOLOTO: Okay. Fine.

20 [Trial Chamber confers]

21 JUDGE MOLOTO: Well, then --

22 MR. GUY-SMITH: Thank you for the use of your calendar,

23 Your Honour.

24 JUDGE MOLOTO: You're most welcome. Just don't tell my secrets.

25 MR. ROGERS: Your Honours, could it be the 15th of May, please,

Page 2734

1 if there's to be a hearing.

2 JUDGE MOLOTO: 15th of May? 15th of May, Judge?

3 15th of May?

4 MR. GUY-SMITH: Sure.

5 JUDGE MOLOTO: 15th of May it shall be, and I'm assuming that

6 Mr. Emmerson and Mr. Harvey are in agreement. Okay. So we schedule a

7 hearing for the 15th of May just in the event that there's no agreement

8 reached between the parties on those documents. Thank you very much.

9 Now may we move into -- okay. Wait a minute. Let me also deal

10 with something before we move into closed session or private session.

11 The Chamber notes that all three Defence teams' submissions -- submitted

12 that the parties have agreed to propose certain dates for the closing

13 submissions, and the Chamber notes these submissions suggesting Monday,

14 the 11th of June, as the date by which the parties will file their

15 written final briefs, and Monday, the 25th of June, and Tuesday, the

16 26th of June, as dates to hear the oral closing arguments of the parties,

17 subject to court availability.

18 Can the Chamber take it that all those dates are -- I don't think

19 the Chamber has heard your voice on this one, Mr. Rogers.

20 MR. ROGERS: No, Your Honour. I spoke to Mr. Emmerson. It was,

21 in fact, I who proposed those dates to Mr. Emmerson and he circulated it

22 to my colleagues for the Defence. So the Prosecution is content with

23 those dates.

24 JUDGE MOLOTO: Is content with those dates, okay. Then we -- the

25 Chamber so orders, then, that the parties do file by the 11th of June,

Page 2735

1 and that by the 25th and 26th of June, the Chamber will hear oral

2 arguments. So that scheduling is made official.

3 One last point before we move into closed session, there is a

4 witness who has not been excused from the witness-stand. His name

5 is Zoran -- yeah --

6 MR. GUY-SMITH: Zoran Stijovic.

7 JUDGE MOLOTO: Stijovic.

8 MR. GUY-SMITH: And I indicated last week, I believe, or maybe

9 the week before, that as far as -- because I'd asked for him --

10 JUDGE MOLOTO: All right.

11 MR. GUY-SMITH: I indicated that further testimony and further

12 examination was not necessary on behalf of Mr. Balaj. I believe the

13 Chamber's received previous indications from both Haradinaj Defence as

14 well as the Brahimaj Defence, that they similarly do not intend nor do

15 they need any further -- his presence any further, so you know for our

16 purposes.

17 JUDGE MOLOTO: I don't remember seeing any such notification from

18 the Brahimaj Defence. May I just have it on record.

19 MR. HARVEY: You may, indeed, Your Honour. We do not require the

20 further appearance of Mr. Stijovic.

21 JUDGE MOLOTO: Thank you very much.

22 Mr. Emmerson, you were never going to call this person?

23 MR. EMMERSON: No.

24 JUDGE MOLOTO: Thank you so much. There's that. Thank you.

25 May the Chamber please move into closed session or private

Page 2739

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 THE REGISTRAR: Your Honours, we're now in open session.

6 JUDGE MOLOTO: -- opened up into open session.

7 Yes, Mr. Emmerson.

8 MR. EMMERSON: Your Honour, three matters, if I may, all very

9 brief. The first is this and this is purely a statement for the purposes

10 of the record, lest there should - and one hopes there won't be - any

11 proceedings after the end of this trial. But I would like, if I may, to

12 make it absolutely clear for the purposes of the record that the

13 indication on behalf of Mr. Haradinaj that there is to be no 98 bis

14 submission should not be taken by anyone as a concession in any form that

15 there is a case for him to answer. The reason why the matters are

16 proceeding in the way that they are directly to closing submissions so

17 far as his case is concerned is to avoid unnecessary delay and

18 duplication of effort and expense that would be involved in scheduling

19 two stages to the procedure. I simply place that position on the record.

20 Secondly, there is a motion to be filed within the next 48 hours

21 concerning Witness 81 and certain additional documentary evidence that

22 has been provided concerning additional criminal convictions recorded

23 against him by a state pursuant to a request for assistance on an

24 ex parte basis. We will be submitting a motion within the next 48 hours,

25 which I would not anticipate the Prosecution having a position to or

Page 2740

1 being in a position to oppose, for the admission of those additional

2 documentary records and for the lifting of the ex parte status of their

3 disclosure.

4 I don't know whether anybody else wants to say anything about

5 that at this stage.

6 JUDGE MOLOTO: That's --

7 MR. ROGERS: Until I see them, I can't comment.

8 JUDGE MOLOTO: You can't comment.

9 MR. EMMERSON: Yes, I wouldn't expect.

10 JUDGE MOLOTO: And I don't expect you have anything to say,

11 Mr. Guy-Smith, unless you are privy to what Mr. Emmerson is talking

12 about?

13 MR. GUY-SMITH: No, I have nothing to say.

14 JUDGE MOLOTO: Mr. Harvey.

15 MR. HARVEY: Just as little.

16 JUDGE MOLOTO: Thank you so much.

17 MR. EMMERSON: And, Your Honour, finally this. I hope that the

18 Trial Chamber has been given advance notice through the Registry and the

19 Chambers of what I'm about to ask, that, namely, that I will be asking

20 Your Honours today either to announce an oral decision with reasons to

21 follow on Mr. Haradinaj's application for provisional release or to

22 indicate a timetable by which that decision will be released.

23 JUDGE MOLOTO: Yeah, I'm not sure we are in a position to give an

24 oral order right now. We can give an idea that sometime in the next week

25 or ten days that the decision would be given. Thank you.

Page 2741

1 Any other business? Mr. Prosecutor. Mr. Rogers.

2 MR. ROGERS: Yes, Your Honour, one matter. Mr. Guy-Smith in his

3 submissions referred to the filing of some legal -- it may be he's going

4 to deal with it, but refers to the filing of some motions or legal

5 motions. I wonder if Your Honours would be kind enough to set a

6 timetable to do that once you've heard from Mr. Guy-Smith when he is

7 going to file them, but there are some additional motions I believe he

8 wants to raise.

9 JUDGE MOLOTO: Okay. That must have gone past me. Do you have

10 any motions to file?

11 MR. GUY-SMITH: Yes, I indicated in our submission that we had

12 one motion to file, it's a bar table motion concerning the admission of

13 the testimony of a witness that had previously testified in the first

14 proceeding. That motion will be filed no later than Friday.

15 JUDGE MOLOTO: Thank you. Is that all the business you have to

16 raise? Do you have any other business to raise?

17 [Defence counsel confer]

18 JUDGE MOLOTO: Mr. Guy-Smith.

19 MR. GUY-SMITH: There is one other potential motion, but I need

20 to have further conversation with my colleagues which I've not had the

21 opportunity unfortunately to do and will do after proceedings today.

22 That is a motion also that if it would be filed would be filed by Friday

23 and is generated as a result of the discussion that we had in the remote

24 location concerning disclosure that was given to us by the Prosecution

25 with regard to Rule 68 matters. And it had been agreed that if there was

Page 2742

1 going to be any litigation or any further pursuit of that matter, that

2 that was something to be done subsequent to our time at the remote

3 location.

4 JUDGE MOLOTO: Okay. Thank you so much.

5 Mr. Harvey.

6 MR. HARVEY: Nothing further to add to that at this point,

7 Your Honour.

8 JUDGE MOLOTO: Thank you very much.

9 Judges?

10 There being no further business, the Status Conference is

11 adjourned and -- it's ended actually. And the Court will adjourn to a

12 date to be set. Court adjourned.

13 --- Whereupon the Status Conference

14 adjourned at 2.40 p.m.