Tribunal Criminal Tribunal for the Former Yugoslavia

Page 112

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

10 Musliu.

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

16 Younis.

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

Page 113

1 translation from English into Albanian.


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

Page 114

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

Page 115

1 this moment on this occasion perfectly all right in a language that you

2 understand?

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.

Page 116

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

Page 117

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 ...

Page 118

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.

Page 119

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

8 meeting.

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

18 yourselves.

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

Page 120

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.


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

Page 121

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.

Page 122

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

Page 123

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

Page 124

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

Page 125

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

14 possible.

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.

Page 126

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.

Page 127

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

Page 128

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

13 treatment.

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

Page 129

1 at 3.53 p.m.