Tribunal Criminal Tribunal for the Former Yugoslavia

Page 218

 1                          Monday, 15 November 2004

 2                          [Pre-Trial Conference]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 10.10 a.m.

 6            JUDGE PARKER:  Would the registrar please call the matter for

 7    hearing.

 8            THE REGISTRAR:  Good morning, Your Honours.  This is case number

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

10    Musliu.

11            JUDGE PARKER:  Thank you.  Mr. Cayley.

12            MR. CAYLEY:  May it please Your Honours, my name is Andrew Cayley.

13    I appear on behalf of the Prosecutor with my colleagues to my right

14    Mr. Alex Whiting, to his right Mr. Colin Black, and to my left is our case

15    manager Mr. Hasan Younis.  Thank you, Your Honour.

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

17            Mr. Mansfield.

18            MR. MANSFIELD:  Good morning, Your Honour.  I represent Fatmir

19    Limaj together with my co-counsel, Karim Khan.

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

21            MR. GUY-SMITH:  Good morning, Your Honours.  I represent Haradin

22    Bala.  My co-counsel, Mr. Harvey, is at this time otherwise occupied in a

23    matter in Great Britain.  I am assisted by two legal assistants at this

24    time, Ms. Nicola Walsh, and Ms. Caroline Buisman, and the gentleman

25    sitting to go my right is Mr. Gentian Zyberi who is here for purposes of

Page 219

 1    assisting all of the present accused for purposes of interpretation.

 2            JUDGE PARKER:  Thank you very much for that Mr. Guy-Smith.

 3            Mr. Topolski.

 4            MR. TOPOLSKI:  Your Honours, good morning.  I represent Isak

 5    Musliu together with co-counsel Steven Powles and our legal assistant

 6    Michelle Butler.

 7            JUDGE PARKER:  Thank you very much.  And I'm sorry things are a

 8    little squeezy this morning.  I gather there were difficulties fitting

 9    everybody in, and I'm sorry for the delay in that matter being sorted.

10            Now, this is the final pre-trial time that we assemble.  I

11    anticipate one matter.  I have been just given to understand that there

12    was this morning a recurrence of a matter raised by counsel with the

13    Chamber when we were last together.  That is concerning the circumstances

14    in which the accused are brought into the Tribunal.

15            I had been assured as late as this morning that the ministry had

16    given instructions that there would be no repetition of that matter.

17    There is no need for any further submission at the moment in respect of

18    it.  The matter will be taken up by the Chamber itself in the course of

19    the day to see how the result was not in accordance with the word that was

20    passed to the Registry by the ministry.

21            Now, I've gone that far just to enable the translation to proceed,

22    and I inquire now of the three accused whether they are able to understand

23    the proceedings in the language that it is being interpreted in to them.

24    Can I ask first of Mr. Limaj whether that is the case.

25            THE ACCUSED LIMAJ: [Interpretation] Yes, Your Honours.

Page 220

 1            JUDGE PARKER:  Thank you very much.

 2            Mr. Bala.

 3            THE ACCUSED BALA: [Interpretation] Yes, I understand.

 4            JUDGE PARKER:  Thank you very much.

 5            Mr. Musliu.

 6            THE ACCUSED MUSLIU: [Interpretation] Yes, Your Honours.  It's

 7    clear to us.

 8            JUDGE PARKER:  Thank you.

 9            Now, Mr. Cayley, is there matter which the Prosecution wishes to

10    raise at this time?

11            MR. CAYLEY:  No, Your Honour.  I expect you will be addressing me

12    at some stage on the matters that we need to specifically address under

13    the Rules to the Pre-Trial Conference, but I leave that in your hands for

14    the moment.

15            JUDGE PARKER:  I was inviting you to take up those matters that

16    affect you, Mr. Cayley.

17            MR. CAYLEY:  Nothing affects me at the moment, Your Honour.  Thank

18    you.

19            JUDGE PARKER:  And you're not expecting me to call on you

20    specifically.

21            MR. CAYLEY:  I'm not Your Honour, no, unless there is something

22    specific.

23            JUDGE PARKER:  As long as we understand each other, Mr. Cayley.

24            MR. CAYLEY:  Yes.  Thank you.

25            JUDGE PARKER:  Mr. Mansfield.

Page 221

 1            MR. MANSFIELD:  Your Honour, if I may indicate the topics at the

 2    moment.  The first is a further opportunity to address the Tribunal

 3    concerning the question of postponement, which was raised at a conference

 4    last week, because documentation arrived late on Thursday, and Friday, as

 5    you know, was a holiday, and it hasn't been possible to enter a further

 6    response.  We did put a response in but in fact they crossed, as it were.

 7    But I would be grateful for a further opportunity to address you about

 8    that.

 9            As the question of blindfolds apparently is resolved, nothing more

10    on that.

11            JUDGE PARKER:  But don't tempt fate, Mr. Mansfield, but it's under

12    consideration.

13            MR. MANSFIELD:  Yes, I understand.

14            JUDGE PARKER:  Yes.

15            MR. MANSFIELD:  The further matter is, and perhaps I can do it now

16    so it doesn't need to be repeated.  On Thursday, we indicated, or I

17    indicated that -- sorry, Wednesday, indicated that so far as I was

18    concerned, various things had to be resolved, and in relation to opening

19    the case for Mr. Limaj, I was not in a position to give a definitive

20    answer, possibly open but not very long.  May I just indicate for your

21    assistance that I would seek to open his case.  I suspect it will take

22    about one hour, and I'm having documents made available that you already

23    have or should have, but I'm not sure whether they're still, as it were,

24    within your purview.

25            Secondly, Mr. Limaj himself would like to address the Tribunal,

Page 222

 1    probably 20 to 30 minutes maximum.  So I hope that's of some assistance.

 2            Otherwise, I don't have any other matter at this stage.

 3            JUDGE PARKER:  Thank you.

 4            Mr. Guy-Smith.

 5            MR. GUY-SMITH:  We have no matters at this time, Your Honour.

 6            JUDGE PARKER:  [Microphone not activated].

 7            MR. GUY-SMITH:  It's the American in me.

 8            MR. TOPOLSKI:  There's no American in me.

 9            We should like if we may, please, after Mr. Mansfield, that is to

10    say, therefore, in indictment order, to raise one or two matters on behalf

11    of Mr. Musliu.  He is extremely anxious and indeed specifically instructs

12    that he would just like me to briefly revisit some matters that have been

13    discussed in the past.  They are, by way of headnote only, the

14    circumstances of his initial arrest and detention, a word on the position

15    regarding provisional release, incommunicado and touch upon blindfolds.

16            May I also indicate, if it assists, that we propose to open the

17    case.  Our opening will take approximately 17 minutes.

18            JUDGE PARKER:  Thank you very much.

19            I take it then only Mr. Mansfield is -- I take it that only

20    Mr. Mansfield is minded to raise the matter of adjournment.  Is that

21    correct?

22            MR. TOPOLSKI:  I'm sorry, Your Honour, were you addressing me?

23            JUDGE PARKER:  I was addressing Defence counsel generally.

24            MR. TOPOLSKI:  Yes.

25            JUDGE PARKER:  Sorry if I was not clear enough.

Page 223












12    Blank page inserted to ensure the pagination between the English and

13    French transcripts correspond













Page 224

 1            MR. TOPOLSKI:  No, no, I --

 2            JUDGE PARKER:  The question is only Mr. Mansfield is to raise the

 3    question of adjournment.

 4            MR. TOPOLSKI:  There is an extant application before the Court in

 5    relation to -- Mr. Mansfield used the word postponement; I'll use Your

 6    Honour's word adjournment, which we put forward at the conference last

 7    week and which were treated for the purposes of the application as our

 8    application, and upon that the Chamber has yet to make a decision, or

 9    maybe it has made a decision but certainly none has been communicated.

10    And consequently, as I understand it, Mr. Mansfield proposes to supplement

11    those oral submissions this morning, and we would wish to hear what he has

12    to say before, if at all, we add to it.

13            JUDGE PARKER:  Yes.  Well, no decision has been made.  We're aware

14    of the issue and what we have seen in the written submissions so far, so I

15    will turn to Mr. Mansfield.

16            MR. MANSFIELD:  I'm much obliged.  I will -- I will endeavour not

17    to reiterate the arguments and submissions put forward in the first place

18    last week on behalf of Mr. Limaj, but inevitably there will be some echo

19    of what was said then.

20            Our concern is that the Prosecution, in their response, are

21    attempting to minimise and marginalise the centrality of the allegation

22    that has been made now for a very long time.  And that is an important

23    issue and an important factor.  The allegation of witness intimidation put

24    clearly at the door of these defendants, and in particular Mr. Limaj,

25    surfaced in 2003, and we say that bears upon the obligation of the

Page 225

 1    Prosecution to investigate it at that stage, and if there is evidence in

 2    particular linking any of these defendants in the sense of being

 3    responsible for any intimidation that may have occurred to be produced.

 4            The reason why it is now central is that the Prosecution indicated

 5    to Your Honour on the last conference before Your Honour the possibility,

 6    in fact it was put rather higher than that because the words used by the

 7    Prosecution were that they will introduce, subject to your ruling,

 8    material relating to this issue into the trial.  Plainly if there were

 9    going to be no attempt to do so or no allegation, none of us would be

10    concerned with this.  One would be concerned but not from the point of

11    view of preparation.

12            And preparation, we say, is central to the case for this

13    defendant, and all defendants plainly.  It's, as you're aware, a right

14    under -- under Article 6(3) that everyone should have time for proper

15    preparation of their defence in relation to the issues in the case.  And

16    what the Prosecution have done is to raise this hare, as it were, and set

17    it running and then say, well, whether it actually enters the main arena

18    or the course of this trial just depends.  It may, it may not, and we'll

19    deal with it when it does, and we say this is entirely improper to do it

20    in this way when it is central.  Because -- and I think the one thing we

21    did indicate last Wednesday is the allegation itself, especially against

22    Mr. Limaj, mirrors the main allegations in the substantive case; namely

23    that he is responsible for orchestrating threats and intimidation in the

24    same way, no doubt, that the Prosecution will say in their opening he

25    orchestrated and supervised the allegations of what went on at Lapusnik.

Page 226

 1            So the two are running in parallel.  And it's not just that mirror

 2    each other.  Plainly, once that hare has been raised to Your Honour, it

 3    has a purpose.  The purpose is in fact already predicated in the response,

 4    the latest response to these matters, because on page 6 of that latest

 5    response, the Prosecutor is already prophesying that if any evidence comes

 6    to light it would help explain deficiencies in the Prosecution case.  In

 7    other words, it isn't just a question of going to the credibility of

 8    Mr. Limaj in the case, or even the culpability which they recognise might

 9    have a relevance to that in the case on the main issues, it will do that,

10    say the Prosecution, but in addition, of course, they will want to say or

11    at least even if they don't express it, they will leave it implicit in

12    this exercise that any shortcomings in the evidence can be explained by

13    the unspoken or sometimes spoken and sometimes attributed and sometimes

14    unattributed allegations of intimidation.

15            To put it specifically, if a witness does not attend, that's

16    because there's been intimidation.  If a witness doesn't come up to proof,

17    that is because there has been intimidation.  If a witness is

18    inconsistent, that is because there's been intimidation.  If a witness is

19    diffident, it is because there has been intimidation.  You can see it once

20    exactly the role that this allegation is going to play in this case

21    unless, we say, it is satisfactorily examined by which we mean at least

22    the Defence given an opportunity to deal with this.

23            The Prosecution on this topic say, oh, well, you can't prove a

24    negative.  Entirely missing the point.  If in fact the allegation is, as

25    it was originally, that there has been intimidation by Limaj directly or

Page 227

 1    indirectly, and may I just quote the initial motion by the Prosecution

 2    this is a very important allegation put specifically in these terms.  May

 3    I just read --

 4            MR. CAYLEY:  Your Honour, I'm sorry.  I'm terribly sorry to

 5    interrupt Mr. Mansfield, but might I point out that this is a confidential

 6    document.  It may be the cat's out of the bag now, but confidential

 7    documents, my understanding, Mr. President, should be addressed in private

 8    session.  It's not a public document.

 9            JUDGE PARKER:  I think you can rest relaxed that no cat has really

10    emerged from any bag at the moment, Mr. Cayley.  Thank you for your

11    concern.

12            Mr. Mansfield, are you going to the content of the document?

13            MR. MANSFIELD:  I was going to indicate no names but just the

14    terms in which it has been put against Limaj.  In other words, directly

15    and through others, and that the evidence specifically suggests, that kind

16    of thing, nothing more.

17            JUDGE PARKER:  I think we can manage that, Mr. Cayley, without any

18    difficulty.  Thank you for that, Mr. Mansfield.

19            MR. MANSFIELD:  In fact, those are the words.  In other words,

20    essentially it was a clear, a concise, a suggestion that there was

21    evidence at the availability and to the Prosecution that Limaj, either

22    himself or through others, has used the communication facilities at the

23    centre to do this.  And in the motion to this hearing today and the

24    document that we received last week, and may I say at once it's not that

25    the Prosecution are only saying these matters in here.  As you will have

Page 228

 1    noticed, the Chief Prosecutor is making it very public, as she did in

 2    November.  So this issue is being raised both publicly outside the Chamber

 3    and inside the Chamber.

 4            So the Defence begin a -- or are about to begin a trial in which

 5    there looms in the background not just a peripheral issue, because that's

 6    how the Prosecution are attempting to say, it is peripheral.  We say that

 7    is a gross understatement.  It's not peripheral.  And they're trying to

 8    say on more than one occasion in their argument that this will have and

 9    does have no impact upon the Defence.  They are entirely uninfected by it,

10    and it's speculative.

11            Well, given the terms in which the Prosecution were seeking

12    disclosure, then we say it isn't speculative.  It doesn't have a -- it

13    doesn't lack impact.  In fact, quite the reverse.

14            Of course, interestingly the way that the Prosecution now put it

15    is watered down.  What they're now saying is that they believe that Limaj

16    may have used the communications.  That's not how they were putting it

17    originally.

18            In any event, we care not how they put it.  Whether they're saying

19    we have used or we may have used.  It's very difficult to conceive of a

20    way in which Limaj has orchestrated directly or indirectly without using

21    the facilities, whether it be letter, whether it be telephone, whether it

22    be direct contact with people from the Detention Unit.

23            And the reason I raise it in forcible terms at this stage is that

24    for two years the Prosecution have been in a position to deal with this

25    matter so that we would know before we started, and certainly I say in

Page 229












12    Blank page inserted to ensure the pagination between the English and

13    French transcripts correspond













Page 230

 1    relation to Limaj, the material so far disclosed does not provide

 2    reasonable grounds for believing that Limaj has orchestrated anything.

 3    None of the material.  Unless there's material that we haven't seen.  But

 4    on the material that we have seen, there's nothing there to suggest that

 5    he has, and that is why we are anxious to dispel this so that both -- I

 6    appreciate your position; namely, you would be able to yourselves ignore

 7    material that you're not going to admit.  However, we recognise and in the

 8    interests of justice being seen to be done that this cloud that has been

 9    raised is at least in part dispelled by giving us the opportunity to look

10    at particular areas of time.  Because, for example, in 2003, if it is

11    suggested Limaj in some way or another was concerned with the incidents

12    that had been set out at that time, and he was orchestrating it whilst in

13    detention, then it shouldn't take too long to discover - and it should

14    have been discovered before now - whether in fact he had had any part in

15    that.  Otherwise it forms no part of the allegation, and it forms no part

16    of this case.

17            And therefore, the facility -- and obviously we're not in a

18    position to actually do it.  The Prosecution are in a position to do it

19    and we say should have done it before now in relation to that if that's

20    going to be the suggestion.  Either they have the evidence or it's just

21    innuendo.  And plainly the same matter arises again in the more recent

22    past in relation to these allegations.

23            And we say the reason why it is important not just to dispel in

24    public as well as in the Tribunal so far as is possible this

25    extraordinarily serious and invasive allegation, it will obviously be of

Page 231

 1    considerable assistance to us when approaching witnesses because it is not

 2    clear so far which witnesses -- because we're only told of examples of

 3    interference, so is it to be said there are other ones which are not

 4    exemplified and which are known about but which will be introduced?

 5            It is important to know that before we start in order to, as it

 6    were, structure sensible investigation as well as cross-examination as

 7    well as submission.  If it were a minor matter on the edge of this case,

 8    then plainly everyone is used to getting on with the business, as it were,

 9    and dealing with the matter.  But this is a theme.  It is underlying the

10    case.  This is the suggestion the Crown -- I'm so sorry, the Prosecution

11    indicate what has infected this case.  That is effectively where they

12    haven't used that word what they say has happened.

13            Well, they say, this can all be dealt with as we go along, and we

14    say, once again, this is no way to, as it were, approach a responsible

15    Prosecution, that we'll just deal with it when it turns up.  And then

16    there might be what, an adjournment during -- during the trial itself to

17    deal with an allegation of this seriousness?  Although there isn't a

18    charge, it's very convenient, of course, that he hasn't been charged.  We

19    suggest if there is evidence against Limaj, then charge him.  Let's face

20    it.  Let's deal with it.  Join it with this case rather than leaving it

21    there and say, well, we might join it later or, rather, we might have a

22    separate charge later after this trial and so on.

23            Again, if it was ancillary in the sense that it was allied but not

24    important, one could understand that.  If it was a minor allegation, one

25    could understand it.  It isn't.  It doesn't be more serious.  And no doubt

Page 232

 1    the public will see it as a serious allegation as well.

 2            These are not, as it were, matters that can be remedied as we go

 3    along and as it's put a host of remedies which could be fashioned as

 4    appropriate such as recalling witnesses who have already been presumably

 5    cross-examined.  That would be both inconvenient and upsetting and

 6    difficult for witnesses and also it means that questions would have to be

 7    re-tailored.

 8            This is all on the assumption, the Prosecution say, that of course

 9    they are going to find evidence or do they have it already against Limaj

10    and it hasn't been disclosed.

11            So the -- the suggestions of how to deal with this as we go along

12    we say are totally unrealistic given the gravity of what is being

13    suggested.  So we do say that the response by the Prosecution in this case

14    is entirely inadequate and misguided in the sense that it does not

15    recognise the significance of what is being suggested here - repeatedly

16    suggested - from 2003 right through to this moment.

17            So we would ask, given the fundamental right to time to prepare,

18    to deal with these allegations that we're not having to do it as we go

19    along.  As you know, it's difficult enough in a case of this kind with the

20    amount of material, the difficulties of translation and so on, to really,

21    as it were, pick it up and run with it as it appears, because we know not

22    where the tentacles of this suggestion are going to end up.  And we need

23    to know now.  Where are we going to end up with this suggestion, or is it

24    all going to be left in the wings, dealt with in another trial, and you're

25    left with an impression which will be very difficult to dispel, certainly

Page 233

 1    in the public eye, that this has been put there for one reason only and

 2    that is, as it were, to poison the water.  So we are very anxious that

 3    we're given at least an opportunity.

 4            Now, finally this:  It is said by the Prosecution that we haven't

 5    put a time frame on it and that's -- it's difficult, because of course we

 6    don't know how much material is there.  But we would ask for consideration

 7    of some time.  Originally I was going to ask for at least 21 days to at

 8    least make a start on seeing what the categories of material are that to

 9    be disclosed and seeing whether amongst that material there is the

10    slightest indication, because if there isn't, then we would want to -- I

11    would want to put that in any opening that I make in relation to this.

12    It's one of the most important prejudicial matters that has arisen that we

13    would seek proper and fair, as it were, containment of this allegation.

14    So certainly a time to give us an opportunity now that it is clear that

15    it's a strong possibility that the Prosecution will want to introduce it.

16    So that is how I put it.

17            JUDGE PARKER:  Thank you very much, Mr. Mansfield.

18            Mr. Guy-Smith, is there anything that you would wish to add?

19            MR. GUY-SMITH:  We are somewhat differently situated than

20    Mr. Limaj only in that no allegations whatsoever have been made against

21    Mr. Bala in this regard.  However, he has been tarred by the same brush

22    repeatedly, and I fear that he, too, will suffer from the same forms of

23    concerns that have been raised by Mr. Mansfield.  I would join in his

24    remarks and his request.

25            JUDGE PARKER:  Thank you.

Page 234

 1            Mr. Topolski.

 2            MR. TOPOLSKI:  I have nothing to add to that which has been said.

 3            JUDGE PARKER:  Thank you.

 4            Mr. Cayley.

 5            MR. CAYLEY:  Thank you, Your Honour.  Firstly, we would obviously

 6    repeat what we have already stated in our latest filing on this matter,

 7    but I will add a few remarks following on from what Mr. Mansfield has

 8    said.

 9            The three accused in this case have been in pre-trial custody for

10    nearly two years.  In February 2004, the Prosecutor stated that she was

11    very keen indeed to get this matter to trial.  That position still stands.

12    We want to go to trial today.  We want this trial to begin today.

13            Witness intimidation in this case unfortunately is a fact.  The

14    motion of the 4th of November of 2004 sets out some of the facts

15    concerning intimidation in this case.  Prior to this time, and in fact

16    Mr. Mansfield has used the same word today, Mr. Mansfield describes the

17    allegations of witness intimidation as innuendo, malicious gossip on the

18    part of the Prosecutor.

19            Mr. Topolski described the allegations of witness intimidation as

20    wild and baseless, and that was contained in his appeal to the President

21    of this Tribunal in respect of the restriction on communications of the

22    three accused.  So --

23            JUDGE PARKER:  Could I observe that on the material then

24    available, as we have briefly seen it just recently, those observations

25    might have been adequately and soundly founded.

Page 235

 1            MR. CAYLEY:  On material that you've seen, Your Honour.

 2            JUDGE PARKER:  That which was known to the Defence at the time.

 3            MR. CAYLEY:  But if I could --

 4            JUDGE PARKER:  Judging on what we have been able to see, which is

 5    little of this.

 6            MR. CAYLEY:  If I could continue, Your Honour.

 7            JUDGE PARKER:  I'm making the point that --

 8            MR. CAYLEY:  I understand.

 9            JUDGE PARKER: -- what is in your knowledge may be different from

10    than which is in the knowledge of Defence counsel.

11            MR. CAYLEY:  I understand the point.

12            Subsequent to those particular comments, an indictment has been

13    confirmed for contempt against another party, not a party in these

14    proceedings, and indeed the President of the Tribunal upheld the decision

15    of the Deputy Registrar to restrict communications.  So in a sense an

16    external audit of the evidence that the Prosecution has gathered on this

17    particular issue has been, as it were, confirmed by, as I've stated, an

18    external audit by two independent Judges.

19            Now an application for adjournment is sought by the Defence on the

20    eve of trial with the knowledge that these problems have gone back for the

21    best part of a year, as Mr. Mansfield acknowledges.  Oral submissions were

22    is made on the 10th of November, as you know.  The principal argument that

23    the Defence are now running is that the issue of witness intimidation is

24    central to the main case and so affects how the main case is run.

25            Now, I am not going to enter into discussion about whether or not

Page 236

 1    it is central to the main case or whether it is peripheral.  What I would

 2    say strongly is that the main case here concerns an indictment alleging

 3    war crimes and crimes against humanity.  That is the main case that we are

 4    dealing with here today.

 5            The issue of witness intimidation is important.  I don't deny

 6    that.  It is an important issue because it affects the administration of

 7    justice.  And because within the Statute the protection of witnesses and

 8    their capacity to come forward before this court in a dignified and

 9    unburdened manner is a matter which is recognised by Article 20 of the

10    Statute.

11            Now, it's my view, Your Honours, that you must know what has taken

12    place in respect of witness intimidation because the integrity of these

13    proceedings depend upon it.  But all of that does not warrant a delay in

14    these proceedings.

15            Now --

16            JUDGE PARKER:  Could I just add a perspective that from the point

17    of view of the Chamber, witness intimidation does not at all feature in

18    the anticipated case.  If it's in your mind, that may be a different

19    thing.  But at the moment, as far as the Chamber is aware, we are not

20    dealing with evidence about witness intimidation.  We are hearing a case

21    about events that occurred a number of years ago.

22            MR. CAYLEY:  Your Honour, I entirely agree with you that in that

23    respect the evidence that you are going to hear is about war crimes and

24    crimes against humanity, and upon that you will make your decision in this

25    case.  I agree with that.  But it is my view, it is my submission that if

Page 237

 1    witnesses are being interfered with, if that affects their ability to come

 2    before this Court in a dignified and unburdened fashion that is a matter

 3    you should know about at the proper time.

 4            JUDGE PARKER:  I think you missed the point of my observation.  At

 5    the moment, we know nothing of that in terms of the trial of these three

 6    accused on this indictment.

 7            MR. CAYLEY:  I accept that, Your Honour.

 8            JUDGE PARKER:  We of course are hearing submissions.  Of course

 9    there have been related proceedings in the last short period, but they do

10    not intrude into this trial and will only do so if you seek formally to

11    have that occur whether there will be a question of whether it's in the

12    interests of justice for that to be permitted or not.

13            MR. CAYLEY:  Yes, Your Honour.  And at that time, the Defence can

14    make submissions before you that that evidence should not be admitted into

15    the Chamber, if we were to decide to do that.

16            JUDGE PARKER:  Your observations at the moment are suggesting that

17    you have a clear thought that this will be an issue which will feature in

18    your case.  Now, if that's the position, it adds some significance to what

19    Mr. Mansfield has been putting to us.

20            MR. CAYLEY:  Your Honour, it may become an issue.  I cannot say

21    that it will not.  I cannot put the Prosecutor in that position with this

22    issue.  I cannot say it will not.  It may become an issue in this case.

23            The results of the telephone records, the release of the telephone

24    records will, I think, go in one of two directions.  They will either

25    produce evidence that there has been interference with witnesses or they

Page 238

 1    will produce nothing at all.

 2            Now, if they produce nothing at all, it doesn't affect the

 3    position of the Defence at all, because the allegation that was originally

 4    made about witness interference was not made prospectively by the

 5    Prosecutor in the hope that evidence might emerge from these telephone

 6    records.  It was made upon the basis of evidence already in our

 7    possession.

 8            Now, if the telephone records do produce information or evidence

 9    that suggests that witnesses were interfered with, I wonder how that

10    really helps the Defence.  Is Mr. Mansfield going to put it to a witness

11    who may have already given evidence in the case that because information

12    is revealed by the telephone records that this particular witness was

13    interfered with, is Mr. Mansfield going to put it to that witness?  Is it

14    right that you were interfered with and that somebody tried to prevent you

15    giving evidence?   I think that's a question that the Prosecution would

16    put as opposed to the Defence.

17            Now, as to the argument of the general environment, that there is

18    a general environment of hostility and prejudice towards the two -- the

19    three accused, I believe, Your Honours, that as professional Judges, you

20    can divorce what you have heard or read about this issue from the main

21    issues in this case, which is the evidence relating to war crimes and

22    crimes against humanity, the matters addressed in the Second Amended

23    Indictment.

24            Now, the Defence have stated that if we sought to withdraw the

25    motion of the 4th of November we should withdraw the allegation.  Now, I

Page 239

 1    want to make it perfectly clear we are not withdrawing the motion.  The

 2    motion stands.  And as I've already stated to you, the original allegation

 3    that was made was not based on an expectation that the telephone records

 4    might reveal information about witness intimidation.  It was based on

 5    information already in our possession.

 6            The conduct of the Prosecution in this matter has been described

 7    by the Defence in their latest motion as cavalier.  Now, I've always

 8    understood that word to mean arrogance or insolence.  Perhaps it wasn't

 9    meant in that sense.  Perhaps it was meant in the sense that we behaved

10    irresponsibly.

11            Whatever was meant, I would reassure this Court that we have

12    conducted ourselves responsibly, cautiously, and for a purpose to ensure

13    that this trial can actually take place.

14            Your Honours, finally, delaying this case would actually assist

15    the very purpose that the Prosecutor is seeking to avert.  It would

16    actually place witnesses at greater risk.  It would exacerbate the

17    position.  The most effective way to deal with the issue of witness

18    intimidation is for this trial to commence today and for the Prosecutor to

19    complete her case in chief as soon as possible.

20            Dealing with these telephone records is not going to take a day or

21    a week or even two weeks.  Mr. Mansfield has already stated 21 days.  I

22    suspect it will probably take months.  Now, if that is the case, this case

23    is going to be delayed for a very long time indeed.  We do not want that.

24    The Prosecutor wants to go to trial today.  We do not intent on

25    withdrawing our motion.

Page 240

 1            Thank you.

 2                          [Trial Chamber confers]

 3            JUDGE PARKER:  We would like to hear you, Mr. Mansfield, on the

 4    other matters you planned to raise.  We will, at a convenient time, then

 5    reflect upon what's been put to us on the question of an adjournment.

 6    Thank you.

 7            MR. MANSFIELD:  Yes.  The -- thank you.  I don't have a great deal

 8    to add on the other matters.  I think I've already indicated the ambit of

 9    them, namely an opening of about an hour, and Mr. Limaj addressing you.  I

10    can't elaborate on either of those two, and I --

11            JUDGE PARKER:  You can't.  I'm sorry, I made a note and it may be

12    my fault.  I had a note you -- my note is of documentation.

13            MR. MANSFIELD:  Yes.  I'm so sorry.  That was me indicating that

14    in order to make it easier for you to follow what I'm saying there are a

15    number of documents, and what we would like to do is assemble a file of

16    the documents I intend to use so that you have them in front of each of

17    you.  They're documents that are before the Tribunal already but we just

18    need time to assemble them.

19            JUDGE PARKER:  That's for the purpose of the adjournment

20    application.

21            MR. MANSFIELD:  No, it isn't.  It's for the purpose of the

22    opening.

23            JUDGE PARKER:  The opening.

24            MR. MANSFIELD:  I have no other matters.

25            JUDGE PARKER:  Thank you.

Page 241

 1            Mr. Guy-Smith, you are not wishing to raise any matters.

 2            Mr. Topolski.

 3            MR. TOPOLSKI:  Your Honours, may I then deal I hope shortly

 4    with -- briefly, I mean, with the four matters I indicated before.  May I

 5    preface them by saying this as I think I said to you on the last occasion

 6    that we met:  My client came and sits there today with high regard for

 7    this Tribunal, or at least he came here with that high record.

 8            Four events over the last 20 months or so have for him undermined

 9    his confidence, and he wishes me here today, if you will, as I know you

10    all will, hear me patiently just for a few moments to raise them again.

11            He seeks this Tribunal's reassurance.  They are these:  He was

12    arrested on the 11th of February, 2003, on a warrant issued by this Court

13    on the 24th of January of that year, which required, as all warrants do,

14    his timely transfer to this city, to this Tribunal.  For six days of

15    detention, the fact of that warrant was not disclosed to him.  Thus he was

16    held for six days ignorant of the reasons for or the justification of his

17    detention.

18            I do not take the Tribunal to an interview of him, but in the

19    interview of him, indeed the first one with a representative of the

20    investigator's office of this Tribunal, it is, in our submission,

21    manifestly obvious that it is only then, that day, i.e., the 17th of

22    February, that he is made aware of why he is held.

23            What happened in these six days was that he was interrogated,

24    interrogated unrepresented about matters not in this indictment nor, I

25    add, in any other.

Page 242

 1            The second point is this:  Those events played a part, he

 2    believes - and may I underline the words he believes - in the refusal

 3    upon appeal of provisional release not being canvassed in open court and

 4    he not being given the opportunity as others have to voluntarily surrender

 5    to the jurisdiction of this court.

 6            The third matter is this:  The material now disclosed that sought

 7    the incommunicado order places the allegations of orchestrating a campaign

 8    of witness interference very much at the door of Isak Musliu.  I say now

 9    what I said before:  Although they are not wild and baseless, because they

10    have a base in evidence, they are vehemently denied from first to last.

11    He regards one month before a trial notwithstanding the apparent force of

12    that material that the decision to debar him from any contact with his

13    family was Draconian and unnecessary and that the legitimate concern of

14    the Prosecutor would have been, he says, and we submit, more appropriately

15    met by something less Draconian than a complete communication ban.

16            As I stand here today, that ban is now lifted.  It's lifted

17    because Mr. Cayley has not sought to reapply for it.  It terminated over

18    this past weekend.

19            I only say this about blindfolds, the fourth and final matter,

20    that when I saw him this morning in the cell, Isak Musliu was literally

21    red-eyed and unable to speak to me without any degree of concentration

22    about important matters I needed to talk to him about.  The reason was yet

23    again he had been blindfolded.  I say no more than we await anxiously the

24    final - and may I underline the word final - resolution of that.  It's a

25    comfort that this Tribunal had understood the position this morning, a

Page 243

 1    particular comfort because we have not even had the courtesy of a reply

 2    from the Registrar as to the letter you, Your Honour, invited us to

 3    make -- write on the last occasion we were before you seeking their

 4    assistance.

 5            They are the four matters I wish to raise.  We're grateful for the

 6    patience with which the Court has sat and listened to them.  They are an

 7    attempt to clear the air.  He still, as I said, holds this Tribunal in

 8    high regard.  As to where we go from here this morning, we shall see, but

 9    they are the matters I wish to raise on his behalf at the moment.  With

10    just one addition, if I may, to flag up a very considerable difficulty we

11    are having with interpreters.  May I tell the Court that I could not see

12    Isak Musliu for the entirety of last week in the Detention Unit, having

13    come to move to The Hague last week for the purpose of seeing him upon a

14    regular basis.  Why not?  Because I was only offered the services of

15    interpreter but for a very limited period of time during the course of --

16    sorry, the week before last.  I beg your pardon.  I saw him last week.

17    The week before last.  There was a complete de facto inability of us to

18    see our client two weeks before this trial was to start because there were

19    not enough Albanian-speaking interpreters.  I don't think this is going to

20    be the last time this is going to be raised but I flag it up as a

21    potential serious and ongoing difficulty.

22            JUDGE PARKER:  Are these interpreters ones that you are providing

23    for the purposes of Defence preparation or are you speaking of Tribunal

24    interpreters?

25            MR. TOPOLSKI:  Mr. Guy-Smith is the resident expert on

Page 244

 1    interpreters at counsel's bench.  So I wonder if I may invite him to

 2    answer that question.

 3            JUDGE PARKER:  Thank you.

 4            MR. GUY-SMITH:  The interpreters that we have are for the sole

 5    purpose of Defence preparation.  The gentleman who sits beside me today I

 6    was fortunate enough to have come for the first time to these proceedings

 7    for today.  He will be with us today and half of tomorrow.  After that,

 8    depending on what further success we have, we may or may not have an

 9    interpreter in this courtroom for the balance of the week.

10            This has been a continued problem.  It has been an a severe

11    problem.  It is a problem that I know Mr. Topolski suffered, I believe

12    Mr. Mansfield and Mr. Khan suffered, and I, too, have suffered.  I was

13    incapable of seeing my client last week while at the detention centre, and

14    I had, I believe, it was two of my visits terminated because there was not

15    an individual for me to use for purposes of interpretation and

16    translation.

17            At one point in time, I was fortunate enough to be able to use the

18    services of a gentleman who works inside the Detention Unit, which was

19    hardly satisfactory, but at least it got us through a bit of a

20    conversation.

21            JUDGE PARKER:  It's still obscure to me at least --

22            MR. GUY-SMITH:  I don't mean to be --

23            JUDGE PARKER:  -- is whether you are speaking of an expectation

24    there be provided to you Tribunal interpreters, or is it that you are

25    saying the Defence is having difficulty finding interpreters for its own

Page 245

 1    purposes?

 2            MR. GUY-SMITH:  We had been led to believe in - and perhaps

 3    mistakenly so - that the Tribunal would be in a position to provide

 4    interpreters for us.  However, I have been informed as a result of a

 5    training session I was in that the Tribunal itself is having difficulty in

 6    regard to the language of Albanian.  It is apparently quite a unique

 7    language and, as I was informed as were others in the same meeting, the

 8    market is small.

 9            Therefore, in direct response to your question, Your Honour, we

10    the Defence are having a phenomenally difficult time finding individuals

11    who are either, one, willing, or two, qualified.  And the willingness has

12    to do with economic considerations because of the payment structure that

13    exists for those people which they find to be well below what they should

14    expect and well below what the going rate is.  However, I don't know how

15    far you wish for me to continue in this conversation.

16            JUDGE PARKER:  You've now answered clearly, thank you.

17            As I understand the position, funds have been allocated as part of

18    what I might call the legal aid programme for the purposes of the Defence

19    arranging interpretation for its own confidential purposes.  And from what

20    I understand, your difficulty is that you cannot find people who are able

21    to undertake that work at the sort of remuneration level that you have

22    readily available to you.

23            MR. GUY-SMITH:  That is --

24            JUDGE PARKER:  Is that the position?

25            MR. GUY-SMITH:  That is one of the concerns.  The second concern

Page 246

 1    is, as I indicated previously, the market is small.  There are not that

 2    many people who actually speak the Albanian language and English

 3    sufficiently in this particular area to be able to be utilised for

 4    purposes of Defence preparation.

 5            I personally have gone far and wide in an attempt to find people

 6    who could fulfil this function, including interviews in London as well as

 7    interviews in Kosovo.  However, the amount that it would cost to have

 8    those people come here, live here for the sole purpose of translation is

 9    prohibitive and well outside of those funds that have been allocated for

10    purposes of interpretation.  I believe there is an expectation that there

11    is a -- there are people here who are in a position to fulfil this

12    function, and unfortunately I'm not finding that to be the case, but I

13    continue to endeavour in that regard.

14            JUDGE PARKER:  We wish you well in those endeavours,

15    Mr. Guy-Smith, and Mr. Topolski as well.

16                          [Trial Chamber confers]

17            JUDGE PARKER:  The Chamber proposes to have a short adjournment

18    now for the purpose of giving consideration to the substantial matter that

19    has been raised with us of the question of adjournment.  I'd expect we

20    will be in a position to return and advise all concerned of our decision

21    in about a quarter of an hour from now.

22            We will now adjourn.

23                          --- Recess taken at 11.07 a.m.

24                          --- On resuming at 11.36 a.m.

25            JUDGE PARKER:  The Chamber is of the view that there is not

Page 247

 1    sufficient justification for a delay to the start of the trial.  The

 2    witness -- the issue of witness intimidation is not a fresh development,

 3    although for the first time there are formal proceedings.  An indictment

 4    has issued, but it is not against any one of the present accused, and it

 5    is not presently the position of the Prosecution that any one of the

 6    accused or more are involved in that other case.

 7            There is no proposal presently before the Chamber to introduce

 8    into this trial evidence of witness intimidation involving any one of the

 9    accused.  The position really is that there is conjecture.  There is the

10    possibility, should yet unknown evidence materialise, that the Prosecution

11    might seek to introduce into this trial evidence of witness intimidation.

12    Just what that evidence might be is presently unknown and unpredictable.

13            If that should occur, the time will then arise, in the Chamber's

14    view, for a consideration of whether that should be allowed and, if so,

15    what the interests of justice may require.  At this point it is simply

16    conjectural.

17            As far as the Chamber can presently foresee, should that arise and

18    should there be justification for the evidence to be introduced into this

19    trial, the range of measures that are available to the Chamber should be

20    adequate to ensure that the interests of justice in this trial are

21    adequately protected.  We recognise, as has been put to us by

22    Mr. Mansfield, that the position to be taken by those representing the

23    accused in their defence might be more certainly and better shaped were it

24    known exactly at this point what, if any, evidence were to be introduced

25    in this trial.  That, though, in the circumstances, is not a realistic

Page 248

 1    expectation, because the nature of recent events suggest that if there is

 2    any development, and that's merely conjectural, it is something that will

 3    not occur in the very near future, and there can be little or no present

 4    prospect that merely by an adjournment of one or two or even three weeks,

 5    as suggested, that those representing the accused could be assured that

 6    they were in a position of knowing all that might possibly arise in this

 7    regard in the conduct of this trial.  Clearly the longer the time passes,

 8    as we move into the trial, the more significant would be any proposal to

 9    introduce this evidence and the more difficult would be the prospect of

10    such a proposal succeeding.

11            For these brief reasons, we will commence the trial this afternoon

12    as planned.

13            Mr. Mansfield sought some indulgence in respect of documentation.

14    We would indicate that we would not expect to hear you until tomorrow.

15    That may, I hope, be sufficient.

16            MR. MANSFIELD:  Yes.  Thank you.

17            JUDGE PARKER:  There seem to be no further issues that require

18    attention at this point.  The Prosecution witness list is presently

19    complete.  It is not the present intention of this Chamber, as sometimes

20    occurs in this jurisdiction, to indicate precise time constraints on the

21    presentation of the Prosecution case, just as it will not be our present

22    intention to do that for the Defence.  We will, however, be mindful of the

23    rate of progress, and if serious concern arises, we may then feel the need

24    to take measures.

25            We will adjourn now until 2.15.

Page 249

 1                          --- Whereupon the Pre-Trial Conference adjourned

 2                          at 11.44 a.m.