Case No. IT-03-66-PT
IN TRIAL CHAMBER I
Judge Alphons Orie, presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr. Hans Holthuis
7 May 2004
DECISION ON DEFENCE’S APPLICATIONS FOR EXTENSION OF TIME
TO FILE PRE- TRIAL BRIEFS AND ORDER FOR FILING OF EXPERT REPORTS AND NOTICE
UNDER RULE 94BIS
The Office of the Prosecutor:
Mr. Andrew Cayley
Mr. Alex Whiting
Counsel for the Accused:
Mr. Michael Mansfield for Fatmir Limaj
Mr. Peter Murphy for Haradin Bala
Mr. Steven Powles for Isak Musliu
- The Trial Chamber is seized of the “Application for Extension of Time to
File Defence Pre-trial Brief” filed on 28 April 2004 by the Defence for the
accused Isak Musliu (“Musliu Defence”). The pre-trial judge in this case,
Judge Joaquín Martín Canivell, had ordered the defence of the accused Fatmir
Limaj, Haradin Bala and Isak Musliu to file their pre-trial brief by 10 May
2. The arguments of the parties
- Musliu Defence seeks an extension of one month to each accused to file
their pre-trial brief on the grounds that 1) the Prosecution’s pre-trial brief
has not been translated into the language of the accused (i.e., Albanian),
2) the Prosecution has failed to disclose an expert report on the history
of the armed conflict in Kosovo, 3) Musliu investigations were delayed for
nearly eight weeks because of the late appointment of investigators by the
Registry of the Tribunal, and 4) Musli’s lead-counsel has not yet been appointed
and his input in Musliu pre-trial brief is of “the utmost importance” (the
- The Defence for the accused Haradin Bala (“Bala Defence”) filed a “Joinder
of Haradin Bala in Application of Isak Musliu for Extension of Time to File
Defence Pre-Trial Brief” on 3 May 2004 (“Bala Application”). It joined to
the arguments 1) and 2) raised in Musliu Application.
- On 5 May 2004, the Prosecution filed the “Prosecutor’s Response to Musliu
and Bala Applications for Extension of Time to File Defence Pre-trial Brief”.
The Prosecution argues that the Defence for the accused Musliu and Bala has
not shown good cause for an extension of time under Rule 127 of the Rules
of Procedure and Evidence of the Tribunal because 1) the Defence may seek
interpreters to read out the Prosecution’s pre-trial briefs to the accused
who should be in a position, at this stage of the proceedings, to articulate
their defence, 2) the evidence of the expert witness is not pivotal to the
instant case and the appropriate relief is not to call the expert witness
at the beginning of the trial, 3) the Defence of Musliu was negligent in applying
for the services of investigators at such a late stage of the proceedings
, 4) the appointment of a new lead-counsel cannot be regarded as good cause
to grant the defence additional time, and 5) the amended indictment was approved
on 12 February 2004 and thus the Prosecution’s pre-trial brief could not be
filed at an earlier stage.
- On 6 May 2004 the Defence for the accused Fatmir Limaj (“Limaj Defence”)
joined the Musliu Application and specifically relied upon all arguments and
reasoning advanced in Musliu Application, except those concerning the appointment
of investigators and lead-counsel for Limaj.
3. Discussion of the Defence’s arguments
(a) Translation of the Prosecution’s pre-trial brief into Albanian
- The Defence of the accused contends that the fact that the Prosecution’s
pre -trial brief is not translated into Albanian hinders the preparation of
the case . The Defence recalls that the Statute of the International Tribunal
requires that an accused is informed of the charges held against him in a
language he understands .2 The
Statute also contains a provision according to which proceedings before the
Tribunal must be conducted in a fair and expeditious manner.3 In this regard , Article 33 of the Statute and Rule 3
(A) of the Rules of Procedure and Evidence (hereafter, “the Rules”) limited
the use of working languages of the Tribunal in order to ensure expeditious
proceedings. Those rules provide that the working languages of the Tribunal
are English and French. In view of these rules, Defence counsel of accused
must speak one of the two official languages of the Tribunal and must make
their filings in one of these two languages. In accordance to Article 21 of
the Statute, and thus in fairness to the accused, the Rules provide for some
exceptions to the language requirements. Rule 66(A) provides a list of documents
which must be given to the accused in a language he understands.4 Pre-trial briefs are not mentioned by Rule 66(A). A Prosecution’s
pre-trial brief , a document made on the basis of the material disclosed to
the Defence throughout the pre-trial proceedings and which summarises the
issues of facts and law of the Prosecution’s case, does not in principle rely
on facts which have not been disclosed to the Defence. Its purpose is to allow
the Defence to indicate in a Defence’s pre -trial brief those allegations
with which the accused and his defence take issue and those they can agree.
Therefore the task of the Defence counsel to advise his client to the best
of his or her ability, by using if need be an interpreter, is not insurmountable.
Accordingly, the Trial Chamber dismisses this argument.
(b) Non-disclosure of the Prosecution’s expert report on the history
of the armed conflict
- The Defence for the accused contend that the non-disclosure of the Prosecution’s
expert report on the history of the armed conflict in Kosovo prevents them
from preparing their pre-trial brief, in particular in relation to arguments
on whether an armed conflict and a widespread and systematic attack on a civilian
population existed in Kosovo in the timeframe of the indictment.5 The Defence makes reference here to the expert opinion
of Stéphanie Schwander-Sievers . At a meeting held between the parties on
25 February 2004 pursuant to Rule 65ter , the issue of disclosure of expert
statements was discussed, in particular the fact that Rule 66(A)(ii) requires
the Prosecution to disclose to the accused copies of the statements of all
witnesses whom the Prosecution intends to call within a time-limit prescribed
by the Trial Chamber or the pre-trial judge. The Prosecution provided satisfying
explanations as to the delay in the disclosure of two expert statements to
the Defence. The Prosecution further emphasised that the evidence contained
in those reports was summarized in the filing to be made – and now made -
under Rule 65ter.6 Bearing in
mind the status of disclosure made by the Prosecution, the pre-trial judge
in this case set a date - which the defence accepted- for the filing of the
Defence’s pre-trial briefs.7
Whatever the obligations might have been under Rule 66(A) if the expert report
would have existed already, the disclosure is governed in the present situation
by Rule 94bis, which states in its paragraph (A) that “the full statement
of any expert witness to be called by a party shall be disclosed within the
time-limit prescribed by the Trial Chamber or by the pre-trial judge”.8 In the instant case, the Prosecution stated that the
expert opinion of Stéphanie Schwander -Sievers was not ready. The Trial Chamber
is satisfied that the full text of such opinion is not crucial for the preparation
of the Defence’s pre-trial briefs9.
Furthermore, The Trial Chamber recalls that Rule 94bis (B) imposes a time-limit
of thirty days to the opposing party to file a notice indicating whether it
accepts the expert statement, wishes to cross-examine it or challenges the
qualifications of the witness as an expert or the relevance of all parts of
the report, and if so, which parts. The Rules of the Tribunal provide the
Defence with a meaningful opportunity to object to the evidence contained
in an expert statement.
- The Trial Chamber notes that the Defence has not filed any notice in relation
to expert statements previously disclosed by the Prosecution as required by
Rule 94bis(B).10 A date for
the beginning of the trial in this case being considered for the near future,
the Trial Chamber will order the Defence to file a notice in accordance to
Rule 94bis(B) by 1 June 2004 and within thirty days upon reception of the
expert reports by Daniel Vanek and by Stéphanie Schwander-Sievers. The Prosecution
will also be ordered to disclose in full the expert reports prepared by Daniel
Vanek and by Stéphanie Schwander-Sievers by 1 June 2004.
(c) Incomplete investigations due to late appointment of investigators
- Counsel for Musliu complains that investigations for the preparation of
the case of the accused Musliu were delayed for nearly eight weeks because
of the late appointment of investigators by the Registry of the Tribunal.
The Defence submits that it requested the appointment of investigators in
this case on 27 February 2004 and that such request was granted on 21 April
2004. The Trial Chamber is concerned that the Defence for Musliu made such
a request at the date of the filing of the Prosecution’s pre-trial brief;
that is over a year after he was himself instructed by the accused Musliu.11 This tardiness is not explained by Musliu Defence. Tardiness
of counsel cannot justify an enlargement of time-limit. This argument is dismissed.
(d) Appointment of lead-counsel
- Musliu Defence submits that a lead-counsel has not been appointed in this
case and anticipates that a lead-counsel will be imminently instructed and
assigned to represent the accused Musliu. The Defence does not provide explanations
as to the reasons of such tardiness. The Defence further states that the “input
of lead-counsel on the content of any Pre-Trial Brief, it is submitted, is
of the utmost importance to Mr. Musliu’s case”.12 The Trial Chamber disagrees. Although the input of a
newly appointed counsel – be it lead- counsel- might be of some assistance,
the Trial Chamber finds that it is not an exceptional circumstance which could
justify an enlargement of a time-limit under Rule 127. This complaint is dismissed.
- The Trial Chamber is nevertheless concerned that the present decision is
rendered on the last working day before counsels for the accused must submit
their pre-trial brief. In view of this exceptional circumstance, the Trial
Chamber grants an extension of two weeks to the Defence for the accused to
file their pre-trial brief, that is before or on the 24 May 2004.
PURSUANT to Rule 127;
ENLARGES the time-limit prescribed for the filing of the Defence’s
pre-trial briefs by two weeks,
ORDERS the Prosecution to file the expert reports by Daniel Vanek
and by Stéphanie Schwander-Sievers by 1 June 2004,
ORDERS the Defence for the accused Limaj, Bala and Musliu to file
a notice in accordance to Rule 94bis(B) in respect of the expert reports
already disclosed by 1 June 2004 and within thirty days upon reception of
the expert reports prepared by Daniel Vanek and by Stéphanie Schwander-Sievers.
Done in English and French, the English version being authoritative.
Dated this seventh Day of May 2004
At The Hague,
[Seal of the Tribunal]
1 - Scheduling Order Setting Time for Submission
of Pre-trial Briefs, 2 March 2004.
2 - See Article 21 of the Statute of the Tribunal.
3 - Article 20 of the Statute.
4 - See Rule 66(A) of the Rules of Procedure and Evidence, which
require the Prosecution to make available to the accused in a language he understands
copies of: (1) the supporting material of the indictment, (2) the accused’s prior
statement (if any), (3) witness statements, and (4) Rule 92 bis statements.
5 - Musliu Application, para. 6(ii), Bala Application, para.
6 - See summary of report of Daniel Vanek of the International
Committee on Missing Persons (ICMP) summarised at page 81 of the Prosecution’s
Rule 65 ter summaries (witness 54) filed on 28 February 2004. The delay
in disclosing the report was explained by the fact that the ICMP has needed to
get waivers from the families at issue. The historical expert report of Stephanie
Schwander-Sievers is summarised at page 70 (witness 48) of the Prosecution’s Rule
65 ter summaries.
7 - The date was set by the representative of the Trial Chamber
on 25 February 2004, was then discussed again during the Status conference held
between the parties and the pre-trial judge on 28 February 2004 and a scheduling
order by the pre-trial judge in this case reiterated the date set for the filing
of the Defence’s pre-trial briefs.
8 - Emphasis added.
9 - See Rule 65ter.
10 - The Prosecution disclosed the report of the expert Professor
George Maat entitled "Human Skeletal Remains from Bodies Recovered in Berisha,
Kosovo" on 6 November 2003, the report of Wim Kerkhoff entitled "Ballistic Report
from the Netherlands Forensic Institute" on 10 December 2003, and the report of
Jose Pablo Baraybar entitled "Findings of the Examination of Nine Sets of Human
Remains Found at the Location of Berisha Kosovo" on 9 March 2004.
11 - Counsel for Musliu was instructed on 20 February 2003.
12 - Musliu Application, para. 6(iv).