Case No. IT-03-66-PT

Before:
Judge Alphons Orie, presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Registrar:
Mr. Hans Holthuis

Decision:
7 May 2004

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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

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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

1. Introduction
1. 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 2004.¹
   2. The arguments of the parties

2. 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 “Musliu Application”).

3. 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.

4. 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.

5. 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

6. 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

7. 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.

8. 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

9. 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

10. 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.

11. 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.

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Alphons Orie
Presiding Judge

Dated this seventh Day of May 2004
At The Hague,
The Netherlands.

[Seal of the Tribunal]