1 Thursday, 27 February 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.20 p.m.
6 JUDGE MARTIN-CANIVELL: Good afternoon again, ladies and
7 gentlemen. May we call the case, Madam Registrar, please.
8 THE REGISTRAR: Good afternoon, Your Honour. Case number
9 IT-03-66-PT, the Prosecutor versus Fatmir Limaj, Haradin Bala, and Isak
11 JUDGE MARTIN-CANIVELL: Thank you, Madam Registrar. May we have
12 the appearances for the Prosecution.
13 MR. CAYLEY: Yes. May it please Your Honour, my name is Cayley.
14 I appear on behalf of the Prosecutor with my colleagues, Mr. Whiting;
15 Mr. Colin Black to his right; and to my left, the case manager, Mr. Hasan
17 JUDGE MARTIN-CANIVELL: Thank you, Mr. Cayley. And for the
18 Defence, please.
19 MR. KHAN: Your Honour, Karim Khan for Fatmir Limaj.
20 MR. MURPHY: Peter Murphy for Mr. Haradin Bala.
21 MR. POWLES: Your Honour, Steven Powles for Mr. Isak Musliu.
22 JUDGE MARTIN-CANIVELL: Thank you very much.
23 MR. POWLES: Your Honour, if I may while I'm on my feet raise one
24 matter and that's in relation to interpretation for Mr. Musliu. I
25 understand from the previous hearing that there was some difficulty with
1 translation from English into Albanian.
2 JUDGE MARTIN-CANIVELL: Yes.
3 MR. POWLES: There was some difficulties with at least one of
4 interpreters, perhaps just an accent -- but not an entirety of what was
5 said was understood, certainly, by Mr. Musliu.
6 JUDGE MARTIN-CANIVELL: Well, I suppose that the translator has
7 already -- interpreters have already heard what you have said and they
8 will take due care for that.
9 MR. POWLES: Thank you.
10 JUDGE MARTIN-CANIVELL: Mr. Bala, please would you stand up. I
11 would like to be sure that you understand what is said in a language that
12 you know.
13 THE ACCUSED BALA: [Interpretation] Yes; although, I did have
14 problems with the interpretation.
15 JUDGE MARTIN-CANIVELL: Yes. If you have problems with
16 interpretation, please tell us immediately and we'll try to find -- and
17 to ease for you the problem.
18 THE ACCUSED BALA: [Interpretation] It was merely a technical
19 problem, but sometimes some of the things I didn't manage to understand.
20 JUDGE MARTIN-CANIVELL: [Microphone not activated]
21 Perhaps it would be easier for you. I don't know. I should ask
22 if the technicians if this is a possibility.
23 THE ACCUSED BALA: [Interpretation] It's a matter of the
24 pronunciation of the interpreter.
25 JUDGE MARTIN-CANIVELL: Oh, I see. Well, perhaps another one
1 will take up that's -- perhaps uses an accent that is more understandable
2 to you than others. You know, everybody, we have different accents, we
3 speak in different languages, and that's perhaps a problem.
4 Okay. If you have some problem, I see that your counsel is also
5 trying to ask about that. Did you have any problem, Mr. Murphy, please?
6 MR. MURPHY: Your Honour, yes. If I may assist. I understand
7 that there were two interpreters involved during the plea hearing, a man
8 and a woman. My understanding is that Mr. Bala had no problem with the
9 woman interpreter but the difficulty of accent arose in relation to the
10 man's interpretation.
11 JUDGE MARTIN-CANIVELL: Yes. So I will address myself to the
12 interpreters, if you can solve the problem that is had by Mr. Bala. It's
13 only temporarily that you had this problem. I hope you haven't had a
14 problem with the previous appearance for the pleadings that you have been
15 asked. You have understand completely whatever has been said before? I
16 mean in the previous appearance. You have.
17 THE ACCUSED BALA: [Interpretation] Yes.
18 JUDGE MARTIN-CANIVELL: Well, thank you. You may sit down.
19 Please, Mr. Limaj, do you understand whatever is said here and do
20 you understand the proceedings without any problem in a language that you
21 can understand completely?
22 THE ACCUSED LIMAJ: [Interpretation] Yes, I was, Your Honour.
23 JUDGE MARTIN-CANIVELL: Thank you. You may sit down.
24 And then, Mr. Musliu, please, I have to ask you the same
25 question: You have understood and you understand now whatever is said at
1 this moment on this occasion perfectly all right in a language that you
3 THE ACCUSED MUSLIU: [Interpretation] Regarding the changes in the
4 indictment that we discussed earlier, they in general are clear to me.
5 But as for the interpretation, it's the interpreter who is not speaking
6 his mother tongue and has had some problems in some matters.
7 But in general, I have understood.
8 JUDGE MARTIN-CANIVELL: Yes. But I am not speaking of the
9 previous appearance. But now, at this moment, you understand what I am
10 saying and what everybody here is saying so that you don't have any
11 problem to understand whatever is being done at this moment?
12 THE ACCUSED MUSLIU: [Interpretation] At the moment, everything's
13 all right and I understand the interpretation.
14 JUDGE MARTIN-CANIVELL: Thank you very much. You may sit down
15 also. Well, I had some good news, if I may say so, from you all about
16 how the preparation for the trial is faring. So I would encourage you to
17 keep in the same path you have already taken.
18 First of all, if I have well understood your case is going to be
19 ready for trial at the end of June. That is very important because, as
20 you have been told, there are at this very moment quite a few cases that
21 are at the same point of the proceedings and it's important to be ready
22 to be selected by Mr. President of the Tribunal whenever another Court
23 will be free to take up this case. So I have been told that it's going
24 to be most likely ready at the end of June, and that's -- I could say
25 that's good news.
1 In order to accomplish this schedule, I know that the Prosecution
2 has shown its disposition to present the pre-trial brief today, and I
3 suppose nothing has gone to prevent your doing so.
4 MR. CAYLEY: Your Honour, I mean, do you want me to run through
5 very briefly where we are, or -- would that assist the Court?
6 JUDGE MARTIN-CANIVELL: Yes, of course.
7 MR. CAYLEY: We will be disclosing our pre-trial brief today.
8 Part of it, the main component of that brief is a public document. Part
9 of it is confidential. That will be filed with the Registry today. But
10 in order to assist the Defence, we're going to provide them with a
11 courtesy copy today that they can take away with them.
12 A couple of other matters that arose out of the 65 ter Conference
13 yesterday which I can deal with now; they are firstly: The Defence
14 yesterday asked us for disclosure in both hard-copy paper and also on
15 compact disk. Previously they'd asked for us only to give it to them in
16 the form of compact disk. Prior to that we were giving them hard copy.
17 We can give them both. They can have disclosure both on paper and on
18 compact disks, on CD.
19 We will also be giving them today a copy of what is in fact
20 titled "A virtual reality." But Mr. Murphy has already pointed out the
21 shortcomings of that title. It's essentially a 360-degree presentation
22 of the locus in quo, the place in question where the alleged crimes took
23 place. That has all of the software on it so that each of the Defence
24 counsel can run that on their own computers and it also has an
25 instruction manual with it. So they'll be able to take a copy of that
1 away with them today.
2 Mr. Murphy also asked a number of questions of us that were
3 outstanding that we hadn't answered in the letter. And we have in fact
4 put together a letter today covering all the points that he raised in the
5 65 ter Conference, and we will give a copy of that letter to each of the
6 counsel for the accused today.
7 Lastly, my understanding at the 65 ter Conference yesterday - and
8 you will have read this yourself - is that the agreement is that the
9 Defence will file their response to our pre-trial brief by the 10th of
10 May of 2004. That was agreed by all the parties. And in respect of the
11 expert reports, it was agreed that all of them, apart from one, the
12 Defence would respond under 94 bis again by the 10th of May of 2004, and
13 that was agreed between the parties.
14 There is one outstanding report, the historical expert. For
15 reasons of illness, our original expert was unable to give evidence, and
16 so we've had to replace that individual at short notice. And that report
17 would be filed in May or June. And we would ask for a response from the
18 Defence 30 days thereafter in accordance with the Rules.
19 So that's where I think we are at the home, Your Honour.
20 JUDGE MARTIN-CANIVELL: Thank you, Mr. Cayley. That was also
21 with my understanding of the situation. But I want to take the occasion
22 now to ask the counsel for the Defence if they have some view that
23 differs from that expressed by the representative of the Prosecutor. So
24 please stand up and speak if you need to make some clarification about
25 what's ...
1 MR. POWLES: Your Honour, yes. If I may. And that's in relation
2 to the Defence pre-trial brief being filed on the 10th of May, 2004. As
3 Your Honour heard, the Prosecution may not be in a position to serve the
4 report of the historical expert that they intend to rely on until May or
5 June of this year, which will of course potentially be after the filing
6 of the pre-trial brief by the Defence.
7 JUDGE MARTIN-CANIVELL: Yes. Excuse me for interrupting, but if
8 I have well understood, it seems that for this last fifth expert
9 report --
10 MR. POWLES: Yes.
11 JUDGE MARTIN-CANIVELL: -- it's intended that whenever it's been
12 presented you will have the 30 days to answer what is said there.
13 MR. POWLES: Yes.
14 JUDGE MARTIN-CANIVELL: So with the exception of this expert
15 report, for all the other things you are in agreement what has been
16 recently said by Mr. Cayley for the Prosecution.
17 MR. POWLES: Your Honour, no. And my concern is this, and that's
18 the filing of the pre-trial Defence brief on the 10th of May, because
19 that may fall, clearly, before the filing of the expert reports by the
20 historical expert. My concern is that that -- that evidence may not be
21 unimportant for this case. The historical evidence could -- could -- I
22 don't know, not having seen it -- could be of great importance to this
23 case, and it's for that reason that it seems to me that it would make
24 more sense for that evidence to be served on the Defence prior to the
25 service of a pre-trial brief on the 10th of May.
1 Now, there may be two possible solutions to that. I don't know
2 whether the Prosecution will be in a position to perhaps bring forward
3 their anticipated date for service of the historical report. If not, I
4 merely flag up at this stage my concern about filing a pre-trial brief in
5 the absence of potentially important Prosecution evidence.
6 JUDGE MARTIN-CANIVELL: Well, I understand what you mean, but it
7 takes the situation back at before -- what was agreed in the last 65 ter
9 MR. POWLES: Your Honour, yes.
10 JUDGE MARTIN-CANIVELL: So let's think that -- let's put it this
11 way: In any case, if you find that can -- the results of the other
12 experts report - I mean, the third and fourth, because the other two
13 experts have already been handed down to you - and you can write your
14 trial brief, your pre-trial brief, you are going to keep this date of the
15 10th May. In case there is not any possibility because of what is
16 expected from the fifth expert report prevent you to maintain this line,
17 well, I invite you, the parties, to speak again and to make talks between
19 MR. POWLES: Yes.
20 JUDGE MARTIN-CANIVELL: And try to find a solution. Because what
21 is not acceptable, I may say, is that the case can't be ready at the end
22 of June. You have insisted, I know the Counsel for the Defence, you have
23 insisted some changes in the indictment could undermine, prejudice for
24 your clients because that could put the situation in a -- I mean, it
25 could demand a delay in the trying of the case. So you agree that you
1 are in very goodwill to keep the lines as much as possible. So I
2 understand what is your --
3 MR. POWLES: Yes.
4 JUDGE MARTIN-CANIVELL: -- difficulty. But I nevertheless insist
5 to you to try to do the best to maintain the deadline there. For the
6 other counsel, is there any problem?
7 MR. POWLES: Your, just before that.
8 JUDGE MARTIN-CANIVELL: Excuse me.
9 MR. POWLES: I would say that certainly on behalf of many
10 Mr. Musliu every effort will be made. My only point in raising my
11 concerns in relation to the historical expert is that it's my
12 understanding that that evidence may not be unimportant. And if that
13 evidence is not going to be served until the end of June, that could
14 present difficulties for the preparation of the Defence case. And my
15 reason for raising it now is so that if the Prosecution can do anything
16 to bring forward the date of the disclosure of that evidence, I'd invite
17 them to seriously consider that course.
18 JUDGE MARTIN-CANIVELL: Of course, I have -- please, Mr. Cayley,
19 I understand that you are on the same stance that is said by the counsel
20 of the Defence, so please tell me.
21 MR. CAYLEY: Your Honour, first of all, we will do everything we
22 can to get this report to the Defence as soon as humanly possible. But I
23 would add here: This is contextual evidence. It does not touch upon the
24 direct crimes alleged in the indictment. It doesn't affect the principal
25 allegations that we make against the accused. The evidence that the
1 three Defence counsel have now and will be given to them today set out
2 the case against their clients. That particular evidence is not going to
3 affect the position of my learned friends in their own pre-trial brief.
4 That I can assure them of. Maybe in a very minor manner, but by and
5 large, this is not evidence directly, directly relevant to the count that
6 is we charge in the indictment.
7 I would also point out that the Rule 65 ter summary which is
8 attached to the pre-trial brief, actually outlines the evidence of this
9 witness. So they can actually see from that exactly what this witness
10 will be testifying about, exactly what the contents of the report will
11 be. So I don't think it does need to be a matter that actually delays
12 the filing of the Defence pre-trial brief. I think May the 10th is a
13 very fair date for both parties. And I would ask, actually, Your Honour,
14 that an order be put this place that the Defence file their response to
15 our pre-trial brief on the 10th of May of 2004.
16 JUDGE MARTIN-CANIVELL: Thank you, Mr. Cayley.
17 You have heard, Mr. Powles, what has been said by the
18 representative of the Prosecutor. So the only thing I can add to that is
19 that if he's right and the case is not going to be so much influenced by
20 whatever may be said later by the expert, the historical expert, I would
21 encourage you to try to maintain the deadline. If ever you find such
22 problem that has been promised to you by Mr. Cayley, you don't reach -- I
23 mean, whatever with respect to have -- to make your pre-trial brief,
24 please speak up and try to connect with him --
25 MR. POWLES: Yes.
1 JUDGE MARTIN-CANIVELL: -- and try to ease out the situation.
2 MR. POWLES: I can assure the Court that every effort will be
3 made to meet that deadline.
4 JUDGE MARTIN-CANIVELL: I hope so. Thank you very much.
5 What about the other counsels?
6 MR. MURPHY: Your Honour, we don't anticipate -- on behalf of
7 Mr. Bala -- there being any difficulty in filing the pre-trial brief by
8 the 10th of May, regardless of the expert's opinion.
9 The difficulty that -- that may arise is this: Certainly in
10 other trials before this Tribunal the only of historical experts has been
11 a little more than contextual. It can, of course, have relevance to
12 certain legal issues that the Prosecution have undertaken the burden of
13 proof. It may be that will be clarified when we see the 65 ter summary.
14 I do see a possibility, however, that if the witness statement and any
15 exhibits of this witness are not to be delivered to us until perhaps
16 sometime in June, at that point the Defence would obviously have to
17 prepare a cross-examination, instruct an expert witness possibly on the
18 Defence side. I'm just concerned about the trial date. And obviously,
19 this is something we can't really say for certain at this time. I would
20 just like to put on record that depending upon the legal relevance of
21 this evidence, it could possibly impact the readiness of the Defence,
22 certainly if we were to go on the 1st of July. We don't know that now,
23 but I think it would be remiss of me not to bring that possibility to the
24 Court's attention.
25 JUDGE MARTIN-CANIVELL: I can see that basically your problem is
1 the same as that of Mr. Powles. So I would also encourage you to try to
2 maintain the deadline that has been fixed, and in case the news that you
3 can predict or can imagine what be included in the historical expert that
4 could change your view of the case occur, you speak up also. Try to
5 connect with the Prosecutor. And you need to -- you apply to me and
6 we'll try to find a way to ease out the situation. Okay?
7 MR. MURPHY: Your Honour, thank you. I'm most grateful. And
8 Mr. Khan, please.
9 MR. KHAN: Your Honour, I'm grateful. In fact, I express similar
10 concerns to those outlined by two learned friends. If I may say so, Your
11 Honour, I think your proposal is eminently reasonable. We will work
12 forward to the 10th of May date. Hopefully, in the four months between
13 now and June, the expert, hopefully, will be able to produce a report
14 before the 10th of May, particularly if a summary already has been
15 prepared that the Prosecution have. And we will remain in contact. But
16 if there are difficulty that is we -- or that we consider may prejudice
17 our clients or prejudice the contents of the pre-trial briefs, we will of
18 course let you, your senior legal officer, let the Chambers and the
19 Prosecutor know.
20 Your, on a second matter, I would like to record my thanks to the
21 Prosecution for their courtesy to provide copies both electronically and
22 in hard copies. It is a very laborious task and it makes our life much
23 easier to have them in both formats. So I am very grateful for that.
24 The final point, Your Honour, is I think yesterday -- it's a very small
25 clarification -- I think it was anticipated that the trial date probably
1 would be starting on or around the 1st of September, but it definitely
2 would not start before July. And that's the time-scale, of course, we
3 are working to. It doesn't affect the pre-trial brief, but of course in
4 the context of the whole trial preparation I thought that clarification
5 ought to be brought once again to your attention.
6 JUDGE MARTIN-CANIVELL: Thank you, Mr. Khan. I thank you for
7 what you have said. But let me tell you that don't confide too much on
8 the two months July, August. If it's absolutely necessary, we'll have to
9 give way to the -- and not maintain and to keep the - please, you may sit
10 down - to keep the deadlines that have already been fixed. So that
11 should be something that goes -- the less-possible possibility, to say
12 that -- to say that.
13 So let's try to keep the lines. If ever you have the same
14 problem that you have told -- that you share with your other counsels,
15 please try to make me know and we'll try to find a solution. But don't
16 be very happy about having July and August because, you know, August is
17 probably a month that everywhere in the world that courts -- I mean,
18 August or the equivalent to August in other regions of the world are
19 moments in which the work of the tribunals stop. So it could be better
20 if we can be ready at the beginning of July, because this way we'd be
21 already in the position of being considered by the President of the
22 Tribunal as one alternative to going on with the trial.
23 So I thank you for whatever you have said.
24 There is another point that I was going to mention, those points
25 that you have already mentioned, both parties, but this is another point
1 which is in reference with the three sets of agreed facts that have been
2 conveyed from the Prosecutor to the counsels of the Defence. It could be
3 interesting that you'll keep in connection, both the counsels for the
4 Defence and the Prosecution, so as to find out a solution for this point.
5 That is the last point I would like to mention in this meeting.
6 There is also another -- I have been told that you have not
7 answered, none of you, the counsels for the Defence, to some proposals by
8 the Prosecution of some witness statements to be received through the
9 system of the Article 92 bis -- or the Rule 92 bis of the Rules of
10 Procedure. So it seems that the Prosecution is intended to perhaps make
11 some petition on this matter or some request. But I would advise you
12 before you -- the Prosecution is introducing such request, to find with
13 yourselves again and try to find out a solution for that if that is
15 Now I have to -- excuse me.
16 MR. KHAN: Your Honour, just on that one issue: Your Honour, I
17 have repeated it on many occasions from the beginning, the initial 65 ter
18 Conference, that of course it is our intention to confine the facts in
19 issue to those really that we do dispute, and matters that can be agreed
20 will be agreed. But as I made clear, I hope, yesterday and as well as at
21 the first 65 ter Conference, it is my position that the timing is
22 premature to agree any facts or any statements until the Prosecution has
23 completed their disclosure. Because one sees it all the time that
24 seemingly innocuous facts may become actually facts in issue, depending
25 upon what other witness statements say.
1 But Your Honour, of course you have our assurance that we will
2 seek to confine the facts in dispute to those, really, that we can't
3 agree. But other matters of course we will agree and no doubt some
4 statements can be read.
5 JUDGE MARTIN-CANIVELL: I understand what you say, Mr. Khan, but
6 I am confident that your goodwill of the parties will make for a solution
7 of these problems. So as soon as the possibility of agreeing or
8 answering about the question of the 20 witnesses will be only -- whose
9 testimony would be only true, 22nd bis Rule of the Rules of Procedure and
10 Evidence could be ready, you will also be ready to comply with what's
11 expected of you under the Rules.
12 MR. KHAN: Your Honour, of course.
13 JUDGE MARTIN-CANIVELL: So I am very confident about that I and
14 am sure that it will work out.
15 Okay. I want to go now to the accused.
16 Mr. Bala, please. Do you have any problems about your present
17 situation in detention? You have facilities to communicate with your
18 lawyer? You have some new -- you want to know something that you haven't
19 had so far clear enough on your case, on your situation? And also, what
20 is your health? Do you have any problems? I know that you had problems
21 because you were told you smoked too much, I remember well. So please
22 tell me just precisely. The purpose of this Status Conference is that
23 you can speak to the Judges and tell us whatever you feel that is
24 necessary for you to be known. Please.
25 THE ACCUSED BALA: [Interpretation] Thank you, Your Honour.
1 Everything is in order. I don't have any criticisms. And all the
2 conditions of my custody are in order and I have everything that I need.
3 Thank you.
4 JUDGE MARTIN-CANIVELL: Thank you. You may sit down.
5 Please, Mr. Limaj. I will address you with the same questions.
6 Do you have everything you need to be in health in your situation in the
7 Detention Unit? You have possibilities to consult, to speak with your
8 lawyer? And the sufficient of your case is sufficiently well-known to
9 you that you can follow properly whatever is your problems now?
10 THE ACCUSED LIMAJ: [Interpretation] As I said in the first
11 session, there's no doubt that everything is in order. And my contacts
12 with my lawyers are fine, and the conditions are fine. And in general,
13 I'm satisfied.
14 JUDGE MARTIN-CANIVELL: Thank you very much.
15 And Mr. Musliu, please, I address you the same question that I
16 have made before to your colleagues. Your situation is all right? You
17 can ensure the position in which you are? Your health issues were taken
18 care of? You don't have any problems to contact with your lawyers? You
19 have sufficient interpreters for whatever you need to communicate? Tell
20 me, please.
21 THE ACCUSED MUSLIU: [Interpretation] Everything is in order.
22 Everything is fine. According to the things -- all the things that you
23 mention are in order. Everything is okay.
24 JUDGE MARTIN-CANIVELL: I thank you. Would you please sit down.
25 I have heard about a problem you have had, all the three of you, about
1 the way you are taken from the Detention Unit to here. That is really
2 not very agreeable, I understand. In the previous Status meeting, Status
3 Conference, I asked the registrar to take care of that. I have to repeat
4 again this to the registrar. I know that the registrar has been taking
5 care and has been intending to ease out all these problems, which I want
6 you to understand are not due to this Tribunal but that's because we are
7 the guests of the country in which they impose the rules. And then, of
8 course, it's very difficult for us to influence the way they are
9 behaving. But I am aware of what you are suffering, and I sympathise
10 with you for that, and I hope and I expect more than the registrar is
11 going to take care -- insisting on that. So the position of the Ministry
12 of Justice and of the Dutch police is changing so as to give you a better
14 So I would like before I adjourn this meeting to ask you if you
15 have any other matters you would like to bring about now, please.
16 MR. CAYLEY: No, Your Honour. Thank you.
17 JUDGE MARTIN-CANIVELL: Thank you, Mr. Cayley.
18 What about the counsels for the Defence? Do you have any other
19 questions you would like to bring about? It is not that -- oh, yes,
20 Mr. Murphy.
21 MR. MURPHY: Nothing, Your Honour, thank you.
22 MR. POWLES: No thank you, Your Honour.
23 JUDGE MARTIN-CANIVELL: If this is the case, we are going to
24 adjourn this meeting.
25 --- Whereupon the Status Conference adjourned
1 at 3.53 p.m.