Tribunal Criminal Tribunal for the Former Yugoslavia

Page 152

1 Friday, 22 October 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.35 p.m.

6 JUDGE PARKER: Good afternoon. The matter for today is a

7 Status Conference. I see all accused and counsel are present. Perhaps

8 the registrar would call the case.

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

10 IT-03-66-PT, the Prosecutor versus Fatmir Limaj, Haradin Bala, and Isak

11 Musliu.

12 JUDGE PARKER: Appearances for the Prosecution.

13 MR. CAYLEY: May it please Your Honours. My name is Cayley. I

14 appear on behalf of the Prosecutor with my colleagues, to my right

15 Mr. Colin Black and to his right Mr. Hasan Younis. Thank you.

16 JUDGE PARKER: Thank you very much, Mr. Cayley.

17 For the accused Mr. Limaj.

18 MR. MANSFIELD: Yes, good afternoon, Your Honours. My name is

19 Michael Mansfield and I'm leading with Karim Khan for Fatmir Limaj. And

20 may I say, as it's my first appearance here, and in -- especially in front

21 of Your Honour, I'm greatly honoured to be here.

22 JUDGE PARKER: We look forward to your company and those of other

23 counsel over the few months to come.

24 For Mr. Bala.

25 MR. GUY-SMITH: Good afternoon, Your Honour. My name is Gregor

Page 153

1 Guy-Smith and I have the honour of representing Mr. Bala, with my counsel,

2 co-counsel, Mr. Richard Harvey.

3 MR. HARVEY: Good afternoon, Your Honour.

4 JUDGE PARKER: Thank you very much, Mr. Guy-Smith.

5 And for the third accused. Mr. Musliu.

6 MR. TOPOLSKI: Good afternoon, Your Honours. Michael Topolski and

7 I lead with Steven Powles on behalf of Isak Musliu.

8 JUDGE PARKER: Who just comes into view around the pole that

9 I've ...

10 MR. TOPOLSKI: He frequently hides away.

11 JUDGE PARKER: We will attempt to draw him out.

12 MR. TOPOLSKI: I will do my very best, Your Honour.

13 JUDGE PARKER: Thank you very much, Mr. Topolski.

14 You will be aware that this trial Chamber, comprising Judge Thelin

15 and Judge Van Den Wyngaert and myself have been assigned to the trial of

16 this matter by order of the President, made on the 11th of October this

17 year.

18 Could I ask of each of the accused, firstly, Mr. Limaj, whether

19 you are able to follow the proceedings from the interpretation that is

20 being given to you.

21 THE ACCUSED LIMAJ: [Interpretation] Yes, Your Honour.

22 JUDGE PARKER: Thank you very much.

23 And of Mr. Bala.

24 THE INTERPRETER: Microphone, please.

25 THE ACCUSED BALA: [Interpretation] Yes, Your Honour. I

Page 154

1 understand.

2 JUDGE PARKER: Thank you very much.

3 And Mr. Musliu.

4 THE INTERPRETER: Microphone, please.

5 JUDGE PARKER: Could you repeat that just a little louder, please.

6 THE ACCUSED MUSLIU: [Interpretation] Yes, I understand. I

7 understand.

8 JUDGE PARKER: Thank you very much.

9 The purpose of this Status Conference, so that the accused

10 directly understand, is to seek to organise and ensure the smooth exchange

11 between the parties of materials necessary for the expeditious preparation

12 of the trial, and also to allow issues to be raised by counsel that may

13 affect the running of the trial, and also to allow to any accused who has

14 reason, an opportunity to raise issues in relation to their mental and

15 physically condition, if that should be of any relevance.

16 The Chamber itself has no particular issue which it wants to bring

17 to the notice of the parties in this matter, so I would ask first whether,

18 on the part of the Prosecution, there is any matter that it seemed

19 appropriate to bring to the attention of the Chamber.

20 MR. CAYLEY: Your Honours, there's only actually one issue that I

21 have immediately, and that is compliance with Rule 68. And it would only

22 be if Your Honour actually wanted me to give a brief summary of the steps

23 that we have taken to comply with that particular Rule of the Rules of

24 Procedure and Evidence.

25 JUDGE PARKER: Could I say that it may be more expeditious to wait

Page 155

1 to see if it there is any perceived difficulty with what has occurred.

2 MR. CAYLEY: Thank you, Your Honour.

3 JUDGE PARKER: We'll move on, then.

4 Mr. Mansfield, is there any matter that your client wishes to

5 bring forward?

6 MR. MANSFIELD: Your Honour, yes. I will go slowly in case there

7 are interpretation or translation difficulties.

8 JUDGE PARKER: You'll find that's a habit which much grow upon you

9 here.

10 MR. MANSFIELD: May I say I'm engaged in a trial in London where

11 it's all translated at the moment, so I'm rather used to a situation of

12 speaking slowly. But if it's too slow then please say.

13 However, there are particularly three interrelated matters that I

14 wish to raise on behalf of Fatmir Limaj, although there -- I think some of

15 them affect others as well. And they go to the heart, we say, of what

16 this Tribunal is established to accomplish, which is a fair trial, and

17 Article 6 compliance in terms of the convention itself. And the way we

18 would ask you to consider that there is a risk, and I put it no higher at

19 the moment, a risk of that convention right being in jeopardy arises in

20 three ways.

21 One is a decision which I appreciate isn't yours and is not one

22 that Your Honours will be deciding in the next few days, and that concerns

23 one that was made on the 14th of October, concerning all three defendants

24 being kept, can I put it in shorthand form, incommunicado, save for

25 communications with their lawyers and also diplomatic or consular staff.

Page 156

1 The second matter, and also related, is the condition in which

2 they are transported to this court, which has recurred today, only worse.

3 Third is the recurrent suggestion and innuendo that in some way or

4 another, and of course it relates to the first two, no doubt, or certainly

5 the first one, that there has been some kind in this case of witness

6 intimidation, never spelt out, never detailed.

7 May I deal with these three, because the three have to be seen

8 together for their cumulative effect. It is singular in this case,

9 particularly in relation to the first two issues, that these particular

10 defendants and not any others appearing in this building that we're aware

11 of, are being ordered to be held incommunicado and are being brought here

12 with blindfolds as well as handcuffs, which are no doubt more customary.

13 Why, in fact, these defendants should be singled out in this way

14 is incomprehensible. But the effect, as you may imagine, is serious. It's

15 serious in the sense that it creates a prejudicial atmosphere and a

16 perception that decisions are already being made against their interest on

17 assumptions that in some way or another they may be culpable. But in

18 addition to that, of course, it affects their mental and physical welfare.

19 And perhaps the last decision most of all, where they are being cut off

20 altogether from the support of their families and friends.

21 Now, that will have, particularly as it happens in the run-up to

22 this trial, very deleterious effect on their ability to concentrate, their

23 ability to focus, their ability to give instructions, and particularly at

24 this time, when some of the most important witnesses that you are to hear

25 from or may hear from, their identities have been revealed and preparation

Page 157

1 in relation to those witnesses has to be undertaken.

2 So it is in the context of proximity to trial that the pressures

3 that have been there from the beginning have now been exacerbated to such

4 an extent that we are all concerned that the pressures in the end will

5 result in none of them being in a fit position to countenance a trial.

6 Now, one -- the first one, incommunicado, is a situation that I

7 appreciate is being considered by the learned President at this moment,

8 and a decision is expected early next week, as I understand it.

9 JUDGE PARKER: Is this in respect of the decision of the

10 Deputy Registrar?


12 JUDGE PARKER: Of the 14th of October?

13 MR. MANSFIELD: It is. It's a decision --

14 JUDGE PARKER: I've seen today a copy of that decision, and I have

15 it before me now.

16 MR. MANSFIELD: And it should be dated, I think, the 14th of

17 October.


19 MR. MANSFIELD: And we have -- and I don't intend, obviously, to

20 rehearse the representations that have been made to the President, because

21 it's plainly a matter for him in the first place.

22 JUDGE PARKER: It's a matter of the provision is made for appeal

23 to the President.


25 JUDGE PARKER: -- from a decision such as this.

Page 158

1 MR. MANSFIELD: Yes. And we've availed ourselves of that

2 provision. But the matter that I wish to put on record today, which

3 relates not only to that issue that is, if I may say so, being considered

4 separately, but also to the second issue, the question of blindfolds. And

5 that is this: That the commander of the unit here in The Hague,

6 Mr. McFadden, has been directly spoken to, certainly by counsel, but also

7 by the defendant I represent. And I want it made clear, at least so far

8 as he is concerned, that there is no suggestion from the Detention Unit

9 itself that there has been at any stage a violation of any of the

10 detention rules or the regime that governs their custody. In other words,

11 no violation in terms of communicating with others in a way that they

12 shouldn't, either over the telephone or by letter or in person. And it

13 is, we say, somewhat remarkable that there doesn't appear to have been

14 obtained, either for the purposes of blindfolding or, of course, for the

15 matter of incommunicado, so far as we're aware, any report from the

16 Detention Unit supporting any of the suggestions that are now being made.

17 And we would ask so far as this second matter, that is the matter of

18 blindfolds as concerned, that the matter is now long overdue for

19 resolution. Because this issue, the question of being brought here in

20 blindfolds, was raised earlier this year before the Pre-Trial Judge who

21 was sitting at that time.

22 JUDGE PARKER: I'm sorry to keep interrupting you, as I am,

23 Mr. Mansfield, but I'm just wanting to get clear what it is. It's in

24 respect of transport to and from the Detention Centre.


Page 159

1 JUDGE PARKER: Not in the Detention Centre.

2 MR. MANSFIELD: Not in the Detention Centre. To and from.


4 MR. MANSFIELD: And just so that it's clear, we've checked today.

5 I wouldn't have raised it today if in fact the whole thing had changed,

6 but it hasn't. It's very tight handcuffs today and also blindfolds. As

7 far as I understand for the whole journey today.

8 There was a time when the blindfolds were for the first bit of the

9 journey and the last bit but not the bit in between. However, what we say

10 about this is that -- and we have been saying it for some time, the dates

11 on which this matter has arisen before was the 25th of February this year,

12 the 26th of February this year, and the 27th of February, and then that's

13 three occasions, and then the fourth occasion we've asked that you have a

14 transcript, because it's -- of its significance. On Friday, the 25th of

15 June, it was raised again at that stage in front of

16 His Honour Judge Martin Canivell. And may I just direct your attention if

17 you have either hard copies or you have it on screen, I think you have

18 hard copies of this. May I just pause.

19 JUDGE PARKER: Not I. No, we do not.

20 MR. MANSFIELD: We have some spares. I don't intend to obviously

21 go through the whole of the transcript, just a part of it.

22 JUDGE PARKER: Any particular page?

23 MR. MANSFIELD: Yes. If Your Honour has --

24 JUDGE PARKER: There's no reason to copy if that's what's being

25 contemplated at the moment.

Page 160



3 MR. MANSFIELD: Could I start with a passage at the bottom of

4 page -- I'm using the pagination top right-hand corner. Page 139, where

5 Mr. Topolski at this stage is addressing the Tribunal about the situation

6 and in particular going through the various Rules that apply. And at the

7 bottom of the page, he's reached, page 919 of the current edition of the

8 International Archbold Rule 90, an important rule: "Detainees shall at

9 all times be transported in vehicles with adequate ventilation and light

10 and in such a way and will not subject them to unnecessary physical

11 hardship or indignity." Now, we say, of course, that is particularly

12 pertinent.

13 On the next page, 140, halfway down, Mr. Topolski at that stage

14 had asked that a senior officer be available to answer questions, because

15 there wasn't one there then or on that day he was addressing them. Now,

16 so far as we know, if I may just elaborate that, as far as we know, there

17 isn't any material being provided to indicate that this is necessary or

18 why it is necessary. And if what we have been told by Mr. McFadden is

19 correct, there is no need for these blindfolds. There may not be any need

20 for handcuffs either.

21 JUDGE PARKER: You've mentioned the head of the Detention Centre

22 twice.


24 JUDGE PARKER: The issue is, I think, one that should be put

25 differently. It is not subject to his control, nor subject to the

Page 161

1 Registry of this Tribunal, that the transportation of your clients occurs.

2 There is an agreement between the United Nations and the host country.


4 JUDGE PARKER: And the responsibility for transportation under

5 that agreement is entirely that of the host country, that is, the Kingdom

6 of the Netherlands. And so it is their officers and their security

7 decisions which determine how transportation occurs. And I think that's

8 why I was interested earlier when you were mentioning the Detention Unit,

9 whether it occurred in the Detention Unit or merely in the transfer of

10 prisoners.

11 MR. MANSFIELD: It occurs in the transfer. We do appreciate the

12 responsibilities are divided, but the point we wish to make here is that

13 there doesn't seem from any quarter, whosever the responsibility is,

14 there's no evidence emanating from whatever quarter whoever took the

15 decision for blindfolds had a reasonable basis for that decision. And

16 we've been seeking from some quarter or another what the basis is. Now,

17 if I -- I may just develop what was said on the last occasion. In fact,

18 on the next page, His Honour is not very happy - it's page 141 - with the

19 situation. And he'd had apparently on a previous occasion expressed his

20 thoughts about it. And he goes on at line 11, he regrets it very much,

21 because the situation he obviously is predicting may occur, at line 16, is

22 that it could be repeated almost every day during the actual hearing. And

23 he is saying that he will call again the attention of the Registrar to

24 this point.

25 And at the bottom of the page, if it doesn't go to a good solution

Page 162

1 in the near future - this is again in June - and I keep still being the

2 Pre-Trial Judge in this case, to try to, well, push a little bit the

3 matter so as not a little bit, as far as would be necessary with the

4 Ministry of Justice, to find a suitable solution, which I'm very well

5 aware of the matter.

6 And then over the page again at 141, he wants to hear from

7 Mr. Cayley. Mr. Cayley's response is interesting, because he is not

8 indicating there that there's any direct or indirect evidence that

9 whatever may be the thoughts of certain witnesses and so on, that in fact

10 it has emanated from these defendants. And in fact, we reiterate. We've

11 never been provided with any evidence, indirect or direct, that should

12 suggest the need for blindfolds, or the incommunicado, which is the

13 separate issue. It's a very vague response.

14 And then it devolves into protocols, which I'll come back to.

15 And then at the end of this matter, well, towards the end, there

16 is the -- His Honour is indicating that what he's intending to do is to

17 look into the matter and ask for an early resolution, is the way that it's

18 being put. That's at the top of 148. Try and devise a solution, a prompt

19 solution, for all of this.

20 Now, I've only picked out some passages that are relevant to the

21 question of why this process, demeaning and intimidating process, is

22 continuing.

23 What is remarkable, if I may say so, is that after June there

24 hasn't been a single word said about this. We haven't had any

25 communication from anybody indicating what discussions have taken place,

Page 163

1 if any, and on what occasion, and what resolution has been reached. It

2 may be there isn't any. But judging by what's happened today, the matter

3 is worse than it was in June and on the earlier occasions. And we would

4 submit that if, again, bearing in mind the fair trial provisions, that

5 with the trial not so very long away, this matter should have been

6 resolved by now in such a way that, for example, if it's necessary that

7 they don't see the trees outside on the way here because there's some

8 suggestion they might organise something from inside the van, well, do

9 what they do in England and I dare say in Australia and other

10 jurisdictions. You have highly secure vehicles from which people can't --

11 they have light and air but they can't actually see out as a matter of

12 course but they're not brought shackled with blindfolds. So we make a

13 very simple point. This must be capable of early and, we say, easy

14 resolution as no doubt was in the mind of His Honour in June.

15 So we would ask if Your Honours would be kind enough today, to

16 accelerate this process so that next week, along with the decision which

17 will be determined in relation to the first issue, incommunicado, this

18 could be at least decided so that these defendants know that in future,

19 their transportation is going to be, if I may put it, at least humane.

20 Now, may I just turn from that for a moment to the third matter I

21 mentioned, and that's the question of the alleged intimidation of

22 witnesses, with which allegation we are very concerned to rebut.

23 Once again there has in fact in all the correspondence been little

24 or no indication of the basis for this. We suspect it's coming from

25 people who may generally be afraid, as often happens in criminal trials,

Page 164

1 domestic and international, may have nothing to do with these particular

2 defendants or it may be that it's concerned with the perception that they

3 have of things that have happened in the past. And we wish to emphasise,

4 and I say this on behalf of certainly those who represent Fatmir Limaj, we

5 were very conscious, certainly when I took over the lead role in this

6 particular case, of recognising that the risks, recognising that we were

7 dealing with what had been a theatre of war at one stage, and that

8 therefore there were, if I may put it, sensitivities, raw sensitivities,

9 that had to be dealt with extremely carefully. And last October - I've

10 asked if they can be produced, but at the moment, I don't think they've

11 been found - we sat down in Kosovo with a team of people and we drew up,

12 on behalf of Mr. Limaj, and I drafted them myself, a set of protocols.

13 They were very detailed, both for the management of an office there

14 concerned with correlating all the information coming from here as well as

15 information in Kosovo, and also protocols for an investigative team. They

16 were carefully drafted and they were based on my junior and my own

17 experience in England throughout 30 to 40 years of being familiar with how

18 crime is investigated in England. One appreciates there are obviously

19 going to be differences. But we were extremely conscious of the need to

20 ensure that in fact there could be no suggestion that witnesses were being

21 cajoled, they were being, as it were, dragged in to make statements or

22 whatever. And as far as I'm aware, the protocols that we drew up last

23 October, which were filed with this court, so that you were -- I don't

24 mean you personally, but the court, the Tribunal were made aware at a very

25 early stage that we had intended that everything should be entirely

Page 165

1 aboveboard and known by the Tribunal, not only as to the structure, but

2 also the process itself.

3 And we are very concerned that there are continuing suggestions in

4 correspondence that something, never specified, has gone wrong at some

5 stage or another. And so we would ask that care is taken when suggestions

6 like this are made, because it contributes to the climate that I suggested

7 that is being created, a climate of prejudice and hostility towards these

8 defendants. I don't suggest, of course, that it relates to Your Honour or

9 those who sit with you, but I do suggest that one -- care has to be taken

10 by those who prosecute this case, if those are going to continue in that

11 way.

12 Now, there is one final matter, if I may raise it quickly, because

13 I know others wish to address you, possibly on the same matters, but

14 others as well. But this one again concerns all of us. It was only on

15 the 20th are October, two days ago, that the statements unredacted were

16 finally served and I think some of my friends haven't received them yet or

17 have received them elsewhere. We would therefore ask if Your Honour would

18 kindly consider the 30-day rule with regard to that matter such that the

19 trial begins one week later, in November, namely, the 22nd, which would

20 allow for the 30-day gap.

21 JUDGE PARKER: When did you receive the material?

22 MR. MANSFIELD: I'm fairly sure mine arrived, I think on the 20th.

23 THE INTERPRETER: The interpreters ask that Mr. Mansfield slow

24 down, please.

25 MR. MANSFIELD: And Mr. Topolski's was the same. I can't speak

Page 166

1 for others. But that was the date on which they arrived.

2 JUDGE PARKER: So you effectively would seek a one-week delay in

3 the trial commencement?

4 MR. MANSFIELD: Yes, please.

5 JUDGE PARKER: Thank you. Thank you very much for that,

6 Mr. Mansfield.

7 MR. CAYLEY: Your Honour.

8 JUDGE PARKER: Anything that --

9 MR. CAYLEY: Your Honour, would it be possible, as you wish, for

10 me to respond in turn to the matters raised by each Defence counsel or

11 would you rather I respond at the end to all matters raised?

12 JUDGE PARKER: Could I say, Mr. Cayley, I was about to ask of the

13 other two leading Defence counsel whether they joined in the submissions

14 that have been put by Mr. Mansfield, because from what I would understand,

15 all four points that he makes would appear to be common to the other

16 accused.

17 MR. GUY-SMITH: That is correct, Your Honour, and we would be

18 joining in those remarks made by Mr. Mansfield on all points. And for

19 purposes of the Court's understanding, with regard to the issue of when we

20 received the latest disclosures, that also was on the 20th.

21 JUDGE PARKER: I see. Thank you. And is that the position,

22 Mr. Topolski, as well?

23 MR. TOPOLSKI: Your Honour, it is. May I, I hope, to help, not

24 repeat, what has already been submitted, add one or two matters of our

25 own, please.

Page 167


2 MR. TOPOLSKI: And can I deal with them I think in the same order

3 that Mr. Mansfield did.

4 First of all, under the heading of incommunicado and that

5 decision, we are anxious to make it clear from here on in that our client

6 and I imagine the two who sit either side of him, have hitherto held this

7 Tribunal and all it stands for and its processes respectfully. They have

8 put their faith and trust in this Tribunal to come to a just decision in

9 their cases. The decision regarding incommunicado and the manner of it

10 being sought and the manner of it being obtained has done nothing but sap

11 my client's confidence in this Tribunal to do justice, such that he is

12 telling me today, for the first time, that his capacity to prepare for his

13 own defence has been seriously and significantly undermined by him not

14 being able to do what every other human being is able to do in the world

15 who is not incarcerated or dead, communicate with those he loves. To such

16 an extent, again for the first time, he is asking me to arrange for him to

17 be seen medically. He is very concerned as to his own psychological

18 state.

19 I raise the matter only because they are matters of concern. I

20 raise it deferentially, respectfully, but I hope, hopefully, to indicate

21 how important this is as far as he is concerned. I repeat: For him our

22 understanding that there has been no infringement or violation of any rule

23 or sub-rule or sub-sub-rule within the Detention Centre through the

24 entirety of his own detention.

25 May I, Your Honour, please pick up a point you made in discussion

Page 168

1 with Mr. Mansfield, and again, deferentially but respectfully differ as to

2 the demarkation of responsibility here as between this Tribunal, the

3 Ministry of Justice, and those responsible therefor by respectfully

4 reminding the Court, and reminding is the word I used advisedly of course

5 of the rules governing detention. I raised them with Judge Canivell and I

6 repeat them now for the record if I may. I don't know if Your Honours

7 have conveniently to hand Archbold International Criminal Court's

8 practice, but it's to be found at page 906. I quoted it to Judge Canivell

9 and it is to be found at page 138 of the official -- of the transcript of

10 the hearing in June.

11 And the point is this, and the rule says this: That the United

12 Nations shall retain the ultimate responsibility and liability for all

13 aspects of detention pursuant to these rules. All detainees shall be

14 subject to the sole jurisdiction of the Tribunal at all times that they

15 are so detained, even though physically absent from the Detention Unit,

16 until final release or transfer to another institution. I forensically

17 underline, as it were, the words "sole jurisdiction" of the Tribunal. If

18 this is a matter for the Dutch authorities and not ultimately a matter for

19 this Tribunal, which we respectfully submit it is, by its own rules, then

20 that would involve us potentially in litigating the matter in the local

21 courts. That cannot be in anyone's interest, nor is it appropriate and

22 nor, we would respectfully submit, is it necessary. This court, as we

23 submitted to Canivell, has the jurisdiction to rule upon the issue of the

24 manner in which these men are brought uniquely to this building.

25 The only other matter --

Page 169

1 JUDGE PARKER: Not uniquely, I gather.

2 MR. TOPOLSKI: Then Your Honour has more information than we ever

3 have been given.

4 JUDGE PARKER: I know only of history, not of present affairs.

5 Yes.

6 MR. TOPOLSKI: I take the point. Nonetheless, the point remains

7 undiminished, may I respectfully submit, notwithstanding that.

8 Your Honour, may I say this only about witness intimidation. I've

9 been described as being the driving force behind the protocol that exists

10 in writing, and I think the Court should have a copy of it in front of you

11 if you don't already, of the protocol that was drawn up between the

12 Defence teams and the Office of the Prosecutor regarding the management of

13 witnessing -- witnesses and their interviewing. As the driving force

14 behind it, if that's the right term, it is nothing short of disturbing,

15 not to say disappointing, that the correspondence that continues to

16 emanate from the Office of the Prosecutor casts aspersions not only on my

17 team but inferentially therefore on my team as its leader. This does

18 nothing but generate more heat than light. It does nothing but accentuate

19 the undermining of the Tribunal and its work in the eyes of the person I

20 represent.

21 As far as the question of the trial date is concerned, I have

22 nothing to add to that application that Mr. Mansfield has already made.

23 They are the submissions we make at this stage. I'm grateful.

24 JUDGE PARKER: Thank you, Mr. Topolski.

25 Now, Mr. Cayley, I might turn to you.

Page 170

1 MR. CAYLEY: Thank you, Your Honours. I'll deal with the issues

2 in the same order as Mr. Mansfield. I have a great deal less to say on

3 them than he does, because a number of them do not concern the Office of

4 the Prosecutor.

5 In respect of the ban on communications, I can state to this Court

6 that that ban was made upon the basis of evidence that was placed before

7 the Registrar by this office. I believe it was done in a responsible

8 fashion. I believe it was done in order to protect witnesses on the

9 ground. That matter is now before the President of this Tribunal, and he

10 is the one who will resolve that issue, not this Court.

11 In respect of the second issue -- actually, one further point I

12 would add. Mr. Mansfield states that these were the only accused who were

13 being held incommunicado. That is not true. That is not true. That

14 measure has been used in respect of other accused who have abused the

15 communications privileges that they have at the UN Detention Unit.

16 On the second issue of the manner in which the three accused are

17 brought from the Detention Centre to this court, this is not a matter

18 which the Prosecutor has any affect over whatsoever, so I will make no

19 comment on it other than, in a sense, I do agree with the Defence that it

20 should be resolved, because it was raised in June, and many months have

21 passed.

22 On the final issue, Your Honours, of witness intimidation, I would

23 like to go into private session, if I may.

24 JUDGE PARKER: Can you give a brief subtle indication of the

25 reasons?

Page 171

1 MR. CAYLEY: Your Honour, I wish to speak about matters which I do

2 not wish to be transmitted to the public. I think some of the issues I

3 raise may actually exacerbate problems in the region, frankly. And I

4 would like to address you in private session, if I may.

5 JUDGE PARKER: Very well. We will go into private session.

6 [Private session]

7 (redacted)

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Page 174

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 MR. CAYLEY: Your Honours, in terms of the last issue that was

7 raised and the late disclosure of witness statements, if I can explain

8 exactly the background to this.

9 These were a number of witnesses who are protected witnesses. In

10 order to ensure compliance with the disclosure regime, we disclosed

11 summaries of their evidence to the Defence. So it's not as if the Defence

12 have no idea what this evidence is about. All we did in those summaries

13 was to take out identifying information about those witnesses. They were

14 very scared. They didn't want their names disclosed until 30 days prior

15 to the start of the trial. And that -- the original Trial Chamber agreed

16 with.

17 Now, rather than delaying the start of this trial, my suggestion

18 would be that we essentially drop any of those witnesses who fall within

19 that group back into the -- or actually along into the trial process,

20 which would essentially remedy any prejudice, and frankly, I don't think

21 there is any prejudice to the Defence, because they've had the essence,

22 they've had the fundamentals of this evidence now for well over a year.

23 And so I don't think there is any prejudice. But if there is a perceived

24 prejudice, we can ensure that none of those witnesses appear in the first

25 seven days of the trial, thus complying with the 30-day disclosure period

Page 175

1 with which the Defence are concerned. And that way, we don't need to

2 delay the start of the trial. And again, I apologise. Unfortunately, the

3 manner in which statements are transported is not always predictable. We

4 use these parcels from UPS, and I think probably I was a bit late myself

5 in ensuring that it went out. So I apologise to the Court and I apologise

6 to Defence counsel.

7 JUDGE PARKER: Thank you, Mr. Cayley.

8 I don't think there's any matter that really calls for direct

9 responsive submission unless something burns in the heart of any counsel.

10 MR. MANSFIELD: It's not that I'm sitting on a hot seat.

11 JUDGE PARKER: I didn't identify which part of the body,

12 Mr. Mansfield.

13 MR. MANSFIELD: There is one matter, if I may respond to it, which

14 has been raised. As far as I know, it's the first time it's been raised.

15 I've just had a quick consultation. It may apply to others as well. What

16 we are particularly concerned about is the suggestion today that the

17 Prosecution are going to lead before the Tribunal evidence of a systematic

18 and organised campaign of some form, presumably, of intimidation or

19 inference or something. Now, if this is going to become an element of

20 trial, as I anticipated it would, in the way that correspondence has been

21 certainly held in over the past year, then we are concerned, certainly in

22 terms of the trial date start, certainly in terms of when are we going to

23 receive this material, and how is it relevant. Because you will have

24 noticed in what has been said, it's extraordinarily vague, it is not

25 suggested that it has anything to do with those who represent these

Page 176

1 defendants. In fact, it's not actually suggested it's any of these

2 defendants. Who are the people who purport to represent them? What is

3 being said here? Now, I'm not asking for identities, but the suggestion

4 here is again innuendo, it's indirect, and of course, my learned friend

5 may say he's never come across it before. May I say on behalf of these

6 defendants: We've never come across a situation like this before where

7 the Prosecution intend to make part of their case suggested interference

8 along with all the other matters I've raised, namely, incommunicado and

9 blindfolds.

10 Your Honour, we've been involved and certainly I've been involved

11 in over the last 30 or 40 years in cases of equal gravity to this where

12 suggestions have been made, and there's one at the moment in London, of

13 considerable gravity in terms of undermining the fabric of society,

14 intending to cause enormous damage to a large number of people. It's much

15 larger than this case, in fact, and they are serious crimes that have been

16 alleged. At no stage in any of those prosecutions have defendants been

17 blindfolded, have they been made incommunicado, still less as the

18 Prosecution said they're going to introduce allegations of intimidation

19 into the trial itself.

20 So we say this trial is spiralling into an arena in which it

21 should not go, unless it is going to be said that it's relevant to a

22 particular evidence that is relevant, as opposed to peripheral, and it can

23 be shown with clear material that we can deal with in advance, unless it's

24 all going to be done as it were behind closed doors. So we are disturbed

25 by what is now being said.

Page 177

1 JUDGE PARKER: I take it, gentlemen, that your content for the

2 matter to rest at that. Mr. Guy-Smith?

3 MR. GUY-SMITH: I've become increasingly concerned about what I

4 would term as the chilling effect that is occurring with regard to my

5 client's ability to adequately and properly be defended and defend himself

6 in regard to some of the statements just made. I'm also somewhat

7 concerned because the remarks made by my colleague, Mr. Cayley here, were

8 quite conclusory in nature and I feel we're in a fashion having to respond

9 to allegations for which there are no identities, which puts us in a

10 position of fighting phantoms and ghosts, and the phantoms and ghosts that

11 we are fighting are extremely prejudicial to the fair consideration of the

12 matters that are before this Tribunal.

13 JUDGE PARKER: Mr. Topolski, anything to add?

14 MR. TOPOLSKI: May I again I hope helpfully only add this: What

15 Mr. Cayley has said to Your Honours this afternoon has an echo. In fact,

16 it has an echo in print. It's a letter of the 15th of October to he wrote

17 to all of us defending these defendants, from which I quote one line: "The

18 Prosecution has in fact learned that in five instances individuals

19 representing the Defence have approached" --

20 THE INTERPRETER: Kindly slow down for interpretation and the

21 record --

22 MR. TOPOLSKI: -- "or encouraged them to come to an interview with

23 the Defence. That is described as a blatant violation of the protocol."

24 THE INTERPRETER: The speaker is not being interpreted at the

25 moment.

Page 178

1 JUDGE PARKER: The request is that you go a little slower, please.

2 MR. TOPOLSKI: I'm so sorry. Old habits die very hard.

3 JUDGE PARKER: The process of interpretation is to move from one

4 language to another to another and that takes longer.

5 MR. TOPOLSKI: I'm terribly sorry. I hope that's the last time

6 you have to stop me.

7 JUDGE PARKER: I am advised that it may help if you find it a

8 problem to have your earpieces on and you can then get an idea of how the

9 interpretation is progressing.

10 MR. TOPOLSKI: Very well. Thank you.

11 Can I just say, then, for the benefit of those who are

12 interpreting, that what I have been submitting is that what Mr. Cayley has

13 been saying to us this afternoon when in closed session has an echo in a

14 letter, simply making an allegation of five instances, I quote:

15 "Individuals representing the Defence have approached Prosecution

16 witnesses."

17 For my part, I have no hesitation in asking now the identity of

18 those people. Is it being said they're members of my team, Mr. Limaj,

19 Mr. Bala, or none, or all three, or some of each? I hope the point is

20 clear. If there are such people conducting themselves in this way, I

21 should like to know about it so I can take instructions and I can deal

22 with it. That, I hope, expresses, in the clearest possible, simple, not

23 to say simplistic terms, how seriously we take this, and I echo, endorse,

24 and underline Mr. Mansfield's suggestion. I may not have been about for

25 40 years, only a little less than that, and in my experience it's slightly

Page 179

1 unusual not to say unique for the Crown to be seeking to lead evidence of

2 this kind, in proof of this indictment, but that's perhaps a matter for

3 another day.

4 They are the submissions we make.

5 JUDGE PARKER: Thank you.

6 [Trial Chamber confers]

7 [Defence counsel confer]

8 JUDGE PARKER: The matter which is of concern because of its

9 capacity to inflame, at a time when calm is important, is the third of the

10 four matters raised by Mr. Mansfield and the counsel for each of the other

11 accused, that is, the matter of approach as to witnesses.

12 The Chamber is in no way privy to what has passed between counsel

13 in this matter, and at the moment, the position from the point of view of

14 the Chamber is that there has been a foreshadowing of the possibility of

15 evidence being led in the trial concerning inference with witnesses. If

16 and when that should become in some way a reality, in other words,

17 specific notice is given or evidence is sought to be led on matter, the

18 Chamber will naturally then deal with the matter on its merit. It would

19 be erroneous and not helpful for us to attempt, in theory, to deal with

20 this issue at the present time.

21 So it is a matter for the future, not for today. I would suggest

22 that if there remains indecision or uncertainty as to whether it is

23 suggested that the Defence teams, if I can use that more general word, of

24 any one or more of the accused is in some way involved in improper

25 conduct, that that matter should be raised between counsel, with a view to

Page 180

1 having the position clarified. And we are grateful in particular,

2 Mr. Topolski, for your indication, which is position and attitude we would

3 expect of counsel if there were any suggestion of impropriety.

4 If we could turn to other matters. The first order that has been

5 made by the Deputy Registrar and which, as I've indicated, we saw today is

6 under the Rules a matter now within the jurisdiction of the President and

7 it will be clearly dealt with by him in due course. Therefore, it would

8 not be appropriate for this Trial Chamber to comment upon it, and it is

9 not open to us to take any step in respect of it at the present time. But

10 the procedures are there. They are there not only for the protection of

11 the processes of the Tribunal but also to ensure the fairness of

12 proceedings before the Tribunal, and those matters will be dealt with by

13 the appropriate authority, in this case, the President.

14 The second matter raised, that of the blindfolding during the

15 transportation, is a matter over which there is some confusion and

16 uncertainty. At least, that is the indication we have from the various

17 submissions that have been put to us. Our understanding of the matter is

18 that the sole responsibility for security during the transport of

19 prisoners outside of detention facilities and the premises of this

20 Tribunal are those of the host country. Therefore, at this stage, we

21 would urge counsel for each accused to approach first the Registrar, and

22 then, with guidance from the Registrar as to the most appropriate people,

23 to approach what I believe is the Ministry of Justice for the Netherlands,

24 to raise the concerns there are about this matter. I could indicate that

25 we will informally advise the Registrar that the matter has been raised

Page 181

1 and advise the Registrar that concerns that have been put to us by counsel

2 on their face appear to have some substance, and that they have already

3 seen what appears in the transcript before the Pre-Trial Judge about the

4 matter. But beyond that, it is a matter for resolution with the Dutch

5 authorities. If things go wrong in the transportation, the responsibility

6 is theirs, the responsibility, therefore, for the measures taken is

7 theirs. It would be well within the capacity of those representing the

8 accused to put to the appropriate Dutch authorities suggestions for

9 alternative means that might be adopted, as they've been briefly

10 foreshadowed here, to avoid the matters that are giving concern to your

11 clients but which, at the same time, might well enable any concerns that

12 those authorities have to be satisfactorily met.

13 The fourth matter raised concerns the statements. It appears they

14 have been served late. In the circumstances, given that the substance of

15 them was earlier known and the undertaking of the Prosecution that they

16 would not call any of the witnesses affected by the late delivery of the

17 full statements until outside the 30-day rule, the Chamber would take the

18 view that there is no reason to delay the commencement of the trial and

19 that any embarrassment or difficulty caused by the lateness of the

20 statements will be satisfactorily met by that delay in the order in which

21 those witnesses are called.

22 Is there any matter concerning the health of the accused or their

23 conditions of actual detention that needs to be raised at the present

24 time? Mr. Mansfield.

25 MR. MANSFIELD: No, thank you.

Page 182

1 JUDGE PARKER: Thank you.

2 Mr. Guy-Smith.

3 MR. GUY-SMITH: None, Your Honour. Not at this time.

4 JUDGE PARKER: Mr. Topolski.

5 MR. TOPOLSKI: Only just to repeat that which I've already

6 submitted, that we shall arrange for a psychiatric examination. There is

7 grave concern on the part of my lay client as to that facility and its

8 availability and suitability within the Detention Centre, but we shall

9 take steps to assist in any way we can.

10 May I, Your Honour, please, for the purposes of clarification

11 only, simply ensure that I understand the decisions or indications that

12 you've just made. It follows from them, it seems to me, that

13 Judge Canivell was unable to make any progress in the discussions he

14 indicated he might be having or somebody might be having with the Ministry

15 of Justice on the question of blindfolds, and therefore we're not treading

16 over ground. When we start to tread the ground that you've suggested we

17 tread, it's already been trodden before to be met with "But we've already

18 discussed this with Judge Canivell." May we take it discussions were not

19 productive in any sense, in any sense of that word? Is that a fair way of

20 proceeding?

21 JUDGE PARKER: I would doubt that His Honour had any direct

22 discussions with the ministry. I think his views may have been put to the

23 Registry. It was for that reason that I suggested that counsel might

24 first approach this Registry.

25 MR. TOPOLSKI: I understand.

Page 183

1 JUDGE PARKER: And armed with the information that might there be

2 available to you, your future course can be plotted out.

3 MR. TOPOLSKI: I'm grateful. Thank you.

4 JUDGE PARKER: Is there any other matter that any counsel wishes

5 to raise? If not, that concludes the matters that need to be dealt with

6 at this Status Conference. We thank you all for your attendance, and we

7 will obviously have occasion to see much of you in the near future.

8 We will now adjourn.

9 --- Whereupon the Status Conference adjourned

10 at 3.43 p.m.