Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 23 September 2010

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.00 p.m.

 6             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 7     courtroom.

 8             Registrar, will you please call the case.

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

10     IT-04-84bis-PT, the Prosecutor versus Ramush Haradinaj et al.

11             JUDGE MOLOTO:  Thank you so much.

12             I would just like to confirm that the accused are receiving

13     interpretation and can understand the proceedings in a language they

14     know.

15             Mr. Haradinaj?

16             Mr. Balaj?

17             And, Mr. Brahimaj?

18             THE ACCUSED BRAHIMAJ:  Yes.

19             JUDGE MOLOTO:  Thank you so much.

20             Let me start off by introducing myself.  My name is Moloto, and I

21     will be the Presiding Judge in this case.

22             Could I ask for the appearances, please, starting with the

23     Prosecution.

24             MR. ROGERS:  Yes, good afternoon, Your Honour.  Paul Rogers

25     appearing on behalf of the Prosecution today, together with

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 1     Ms. Martin Salgado and also Mr. Aditya Menon.  And our Case Manager today

 2     is Donnica Henry-Frijlink.

 3             JUDGE MOLOTO:  Thank you very much.

 4             And for the Prosecution -- for the Defence, starting with

 5     Mr. Haradinaj's Defence.

 6             MR. DIXON:  Good afternoon, Your Honour.  Rodney Dixon appearing

 7     for Mr. Haradinaj, assisted today by Bath-Sheba Van den Berg.

 8             JUDGE MOLOTO:  Thank you so much.

 9             And for Mr. Balaj.

10             MR. GUY-SMITH:  Good afternoon, Your Honour.  Chad Mair,

11     Colleen Rohan, and Gregor Guy-Smith on behalf of Idriz Balaj.

12             JUDGE MOLOTO:  Thank you so much.

13             And for Mr. Brahimaj.

14             MR. HARVEY:  Good afternoon.  Good afternoon, Your Honour.

15     Richard Harvey appearing on behalf of Mr. Brahimaj.

16             JUDGE MOLOTO:  Thank you so much, Mr. Harvey.

17             Now, pursuant to Rule 65 bis (A) of the Rules, the purpose of

18     this Status Conference is, one, to organise exchanges between the parties

19     so as to ensure an expeditious preparation for trial; and review the

20     status of this case and to allow the accused to raise issues, including

21     issues relating to their mental and physical condition.

22             Now I would like to recall the basis for the partial re-trial.

23             On the 19th of July, 2010, the Appeals Chamber, with

24     Judge Robinson dissenting, quashed the Trial Chamber's decisions to

25     acquit Ramush Haradinaj and Idriz Balaj of participation in a JCE to

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 1     commit crimes at the KLA headquarters and the prison in Jablanica under

 2     Counts 24, 26, 28, 30, 32, and 34 of the indictment; to acquit

 3     Lahi Brahimaj of participation in a JCE to commit crimes at the KLA

 4     headquarters and the prison in Jablanica under Counts 24, 26, 30, and 34

 5     of the indictment; to acquit Ramush Haradinaj, Idriz Balaj, and

 6     Lahi Brahimaj of individual criminal responsibility under Counts 24 and

 7     34 of the indictment; and finally, acquit Lahi Brahimaj of individual

 8     criminal responsibility under Count 26 of the indictment.  And the

 9     Appeals Chamber ordered that the three accused be tried on these counts.

10             Now, my intention is to plan the pre-trial proceedings as far as

11     possible today.  And I've seen the transcript of the 65 ter meeting, and

12     I will be referring to the submissions that you made at that meeting.

13             "Pursuant to Rule 65 ter (D)(ii), the Pre-Trial Judge shall

14     establish a work-plan indicating in general terms the obligations that

15     the parties are required to meet pursuant to this Rule and the dates by

16     which these obligations must be fulfilled."

17             I propose to start today by issuing some orders in relation to

18     the completion of various key procedures in the pre-trial phase, and I

19     would like to begin by stressing that the Trial Chamber urges the parties

20     to present any evidence already adduced in the initial trial as

21     expeditiously as possible in the partial re-trial.

22             Now, there are two witnesses referred to in paragraphs 14 and 51

23     of the appeals judgement.  I understand that the Prosecution stated at

24     the 65 ter Conference that it will be able to inform the parties and the

25     Chamber by the 21st of October, 2010, of the position with regard to

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 1     Shefqet Kabashi and the other witness referred to in paragraphs 14 and 51

 2     of the appeals judgement.

 3             Can the Prosecution please confirm this?

 4             MR. ROGERS:  Your Honour, yes, I can.

 5             JUDGE MOLOTO:  Thank you so much.

 6             I note that Mr. Rogers stated also at the 65 ter Conference that

 7     a first step is to ascertain from the witnesses whether they are prepared

 8     to testify and under what circumstances so that it will be clear what

 9     other measures need to be sought.  That's very helpful, and I would

10     stress the importance of finding out the position as soon as possible and

11     seeking any necessary orders from the Chamber as soon as possible.

12             In view of the helpful indication from the Prosecution,

13     therefore, I therefore order that the Prosecution file by the

14     21st of October, 2010, a notification on the status of Shefqet Kabashi

15     and the other witness, in particular on the manner in which their

16     evidence will be adduced and any measures that may need to be taken to

17     secure their participation in the proceedings.  Okay.

18             Now, again at the 65 ter Conference, the parties agreed to reduce

19     the length of the indictment so as to correspond to what was at issue in

20     the partial re-trial -- or what is at issue in the partial re-trial with

21     the 28th of October as the dead-line.  In view of this agreement or

22     before I even make the order, do the parties confirm that?

23             Do you confirm, Mr. Rogers?

24             MR. ROGERS:  Your Honour, yes.  What we intend to do is to

25     circulate a reduced indictment.  My learned friends suggested at the

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 1     discussion that they would like to see it in advance.  Obviously we will

 2     get that to them with the hope that we will be able to reach agreement

 3     and possibly file a joint motion or, if not, a motion in relation to the

 4     reduced indictment by that date.

 5             JUDGE MOLOTO:  And the parties are aware of the order that the

 6     Chamber issued on the operative indictment?

 7             MR. ROGERS:  Yes.

 8             JUDGE MOLOTO:  Okay.

 9             Mr. Dixon, do you confirm for Mr. Haradinaj?

10             MR. DIXON:  Yes, I do, providing it's in accordance with the

11     order that has already been made by Your Honour.

12             JUDGE MOLOTO:  Indeed.

13             MR. DIXON:  Yes.

14             JUDGE MOLOTO:  Mr. Guy-Smith?

15             MR. GUY-SMITH:  I do.

16             JUDGE MOLOTO:  Mr. Harvey?

17             MR. HARVEY:  I do.

18             JUDGE MOLOTO:  Thank you so much.

19             Then I'm ordering, then, that the parties file jointly a

20     shortened form of the operative indictment corresponding to what is at

21     issue in the partial re-trial by the 28th of October, 2010.

22             The Prosecution also indicated that by the end of November it

23     would be in a position to present a full list of witnesses and exhibits

24     and the pre-trial brief.

25             I would like you to confirm that, Mr. Rogers.

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 1             MR. ROGERS:  Your Honour, yes.  That is our current positions.

 2     We should be able to deal with that by the 30th of November.  But the

 3     note of hesitation is, obviously, there are ongoing inquiries.  I don't

 4     know what the outcome of those ongoing inquiries may be.  If we needed to

 5     make any form of application, we will make it timely and swiftly, but for

 6     the moment I don't anticipate that.  So the 30th of November is the date

 7     that I'm prepared to commit to.

 8             JUDGE MOLOTO:  Okay.  Then I would order, then, that the

 9     Prosecution file its list of witnesses pursuant to Rule 65 ter (E)(ii)

10     and exhibits pursuant to Rule 65 ter (E)(iii) and its pre-trial brief by

11     the 30th of November, 2010.

12             Let me raise the matter of agreed facts.  Since this is a partial

13     re-trial, there is immense scope for saving time by the parties agreeing

14     facts and any such agreements that would contribute to the expeditious

15     conduct of the proceedings.  I would therefore urge the parties to seek

16     agreement as far as possible, and I have read the transcript of the

17     65 ter Conference and I see that the parties are already -- are ready to

18     reach agreements that will expedite the conduct of the partial re-trial.

19             I note that the Prosecution has proposed that a dead-line of the

20     18th of November for an agreement on facts, adjudicated facts, and agreed

21     issues and that the Haradinaj team proposes a dead-line of six weeks from

22     the Status Conference, which would then be the 4th of November.

23             You will have had opportunities for further discussions since the

24     65 ter Conference two days ago.  I would be very grateful if you could

25     give me an update on where the matter stands.  Are the parties coming

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 1     closer to one another with respect to the dead-line?

 2             Mr. Rogers.

 3             MR. ROGERS:  Your Honour, I don't think I can say we are closer,

 4     in relation to a dead-line.  The 18th of November, the date that I

 5     suggested, was to -- for us to try to have put together agreed facts,

 6     adjudicated facts, and issues of dispute and disagreement much along the

 7     lines of that which is required under 65 ter and would have to be listed

 8     in the pre-trial brief anyway.  The objective in doing that is to enable

 9     us to identify the witnesses that may need to be called for when we file

10     on the 30th of November the witness list.

11             Your Honour, I'm in my learned friends' hands to some extent as

12     to the scope of agreement.  We will need to talk to each other.  I'm

13     confident there is goodwill between us to try to reach an agreement, and

14     if not, to produce a report by the 18th of November as to where we are.

15             Can I just say this:  What I don't think we'll be able to do by

16     the 18th of November is completely isolate, in relation to the witnesses,

17     precise parts of testimony or precise areas of the testimony or

18     statements that have been adduced previously.  I think that will be --

19     that will be too much.  But what we may be able to do, and I hope we will

20     be able to do, is identify agreed facts.  And I particularly hope we can

21     identify agreed issues.  I see a difference between facts and issues,

22     although of course they're related.  But if we can reach agreement on

23     broad issues, then the facts will reduce, the witness list will reduce,

24     the exhibit list will reduce; if we cannot, and end up with a lot of

25     detailed facts, then I suspect it will be longer.

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 1             So as I said in the meeting earlier this week, I do see it as a

 2     two-way street.  It's not just the Prosecution.  It must also come from

 3     the Defence, in our view.  I hear Mr. Harvey, my learned friend, saying

 4     it's the burden on the Prosecution.  But pro-active case management in

 5     cases of this complexity does require, I think, commitment on all

 6     parties.  And I'm confident that we have commitment from everybody to

 7     achieve that end.

 8             JUDGE MOLOTO:  Thank you very much.

 9             Before I turn over to the Defence, I just wanted to raise with

10     you a little concern that I see.  And maybe it may not be a concern for

11     you, but I want to be sure that it is indeed not.  A dead-line of the

12     18th of November, I'm not quite sure whether it gives you sufficient time

13     to meet the dead-line of the 30th because my -- and, of course, I don't

14     know how you run your case, but it would seem to me that it is only when

15     you know what facts have been agreed and what issues have been agreed

16     that you are able to decide which witnesses you want to call.  And if you

17     are going to make that determination only after the 18th, the question

18     is:  Will you meet the dead-line of the 30th?

19             If you say you are not -- you couldn't meet it, I would want you

20     to want to come a little forward rather than extend to the 30th.

21             MR. ROGERS:  Your Honour, I wouldn't have proposed the timetable

22     that I did if I didn't think we would be able to meet that.  I have a

23     view of where the case may end up, and I've taken that into account in

24     the timetable.  But as -- I repeat, much of this depends upon how far we

25     can reach agreement between my learned friends and I.  What I see is if

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 1     we aren't able to reach agreement, the list and the document list will be

 2     longer --

 3             JUDGE MOLOTO:  That is understood.

 4             MR. ROGERS: -- and, of course, the consequence of that is the

 5     time estimate will be longer.  And the -- that is not in the interests of

 6     any of these defendants.  So it's in their best interest that the counsel

 7     assisting them are able to reach agreement where they can because they

 8     know, having tried this case once already, they perfectly know which

 9     areas they are capable of agreeing.  And they are able to volunteer that

10     to us and that will help us to narrow down the scope of this trial and

11     the witnesses and will help us to get to the issues in the case.  So I

12     look to them to some extent.  Obviously, I recognise my own

13     obligations --

14             JUDGE MOLOTO:  Sure.

15             MR. ROGERS: -- in all of this.  But I think we can get there.  If

16     we can't, we'll know fairly quickly, and I'll bring this matter back

17     before the Court.

18             JUDGE MOLOTO:  Thank you very much, Mr. Dixon -- Mr. Rogers.

19             Let me turn to the Defence.  And I'm going to ask you, Mr. Dixon,

20     to comment specifically on two issues - I'm not limiting you to those

21     two - but I would like to hear your response to the Prosecution's

22     submission that the question of drafting agreed facts and issues and

23     adjudicated facts should be a joint effort, not just a prosecutorial

24     burden.  And also the next point being the question of the dead-line.

25     You suggested the 4th of November.

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 1             MR. DIXON:  Thank you, Your Honour.  If I can start by saying, as

 2     you'll be aware from our written submission, our request is for a trial

 3     date as soon as practicable.  And we've indicated certain possibilities

 4     there, certainly before the end of this year.  I understand that this is

 5     not going to be a matter that will be finalised today because there's

 6     some steps to come, but it's important to have that end point in mind, we

 7     submit, in the particular circumstances of this case.

 8             With regard to the two questions, Your Honour, and that end point

 9     does then impact upon the answers to these questions.  The first, in

10     respect of a joint effort, there can be no doubt that we are a hundred

11     per cent committed to trying to reduce the issues and limit the scope of

12     the trial and the length of the trial.  And we are confident, as I said

13     in our written submission, that we can do that within six weeks.

14             We have all heard the body of evidence from the original trial,

15     and it's our submission that much of that, if not all of that evidence,

16     can be admitted by agreement between the parties to go before the

17     Trial Chamber for the partial re-trial.  That might not mean that all of

18     it is agreed as agreed facts, but it can be agreed that it can be viewed

19     as a body of evidence.  And there's no need to re-invent the wheel, as it

20     were, and call back witnesses if there's no further examination and no

21     cross-examination of those witnesses on our part.  And our main point is

22     that the real focus is on the two additional witnesses.  That was the

23     basis of the appeal, that was the basis of the order, and that should be

24     the focus of the re-trial.

25             So we are very confident that we can take that body of material

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 1     and, yes, get agreed facts out of it on the one hand, like issues such as

 2     armed conflict, forensic issues, where we don't anticipate that there's

 3     going to be any disagreement, background facts, issues as to the

 4     structure of the organisations involved, matters like that; and then, in

 5     addition to that, have a body of material which can be admitted, we would

 6     argue by agreement between the parties subject, of course, to the

 7     Trial Chamber's order, without re-calling all of those witnesses to come

 8     great distances and with large expense when all of that evidence has been

 9     heard already and is on the record.

10             Your Honour, then, with regard to the second question that there

11     that Your Honour poses about the dead-line, we would stick with our

12     original suggestion that six weeks is a long enough period.  We have the

13     whole of October to work on this.  And in addition to that, we would also

14     submit that the sooner the Prosecution knows what the areas of dispute

15     might be, if there are any on these matters, the sooner they can then get

16     their final list ready.

17             I know the order is for the 30th of November, but we would hope,

18     because it is possible for the parties to co-operate to an extent, where

19     that could even be brought forward, that they could have that list ready

20     earlier.  So we could do our pre-trial brief earlier and then be

21     trial-ready for a date to be set.

22             So I would urge Your Honour to go with the earlier date of the

23     end of the first week of November, which is the 4th of November.  And if

24     we need time, then the parties can come back to Your Honour and request

25     further time, if that's required.  But we don't anticipate that it's an

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 1     overly-complicated process.  It's really looking at evidence that is all

 2     there on the record already and narrowing it down.  If there's dispute,

 3     well, then that material can still be put in as evidence either on

 4     transcript or video.  And we think we can do it in that time.  In the

 5     event that we can't, we could always request to come back to Your Honour

 6     for an extension.  But to start off with, the most optimistic date

 7     because we think we can make it.

 8             JUDGE MOLOTO:  Thank you very much, Mr. Dixon.

 9             Mr. Guy-Smith.

10             MR. DIXON:  Thank you, Your Honour.

11             MR. GUY-SMITH:  Initially, Your Honour, with regard to the issue

12     of a joint effort in terms of agreed facts and adjudicated facts, I trust

13     and hope that we will be able to reach agreement as to most, if not all,

14     of the testimony that has heretofore been presented in this case.  It

15     seems to me to be a terrible waste of time and resources for us to rehash

16     that testimony and that evidence that was presented previously on those

17     counts that this re-trial is about.

18             As I look at this re-trial - and I made the point the other day

19     and I'll make the point again - this case is really now about two

20     witnesses, which is Mr. Kabashi and he who shall not be named.  And I say

21     that because if the focus is placed there, then there is a manner to

22     rapidly, expeditiously, and fairly deal with the issues that are being

23     presented.  And, of course, I think we all appreciate that something

24     being expeditious and something being fair are not necessarily the same,

25     and I'm sure that all of the parties here wish to achieve both of those

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 1     manners.

 2             In terms of the issue of adjudicated facts, I'll take a slightly

 3     different view, because as we all know an adjudicated facts is a fact

 4     that creates a rebuttal presumption, and it seems to that extent we may

 5     be, if we're dealing with this as a joint matter, then we really are in

 6     agreement.  And if adjudicated facts are going to be presented, what, in

 7     effect, we're doing is we're inviting the potential of more testimony and

 8     a longer trial.  So one would hope that we would be able actually to

 9     agree to all of the testimony that has been previously presented and

10     heard with regard to those witnesses that are germane to the specific

11     counts in the indictment that remain for this re-trial, which as I

12     understand it are Counts 24, 26, 28, 30, 32, and 34.

13             If that methodology is used, I think that we would be in a

14     position to rapidly arm the Chamber with not only transcripts but also

15     the videos so that the Chamber is in a position to assess those issues

16     concerning credibility.  That would be available by video.  And we've

17     been in a position to rapidly, since I know everybody is interested in

18     having this done rapidly, take care of that aspect of the case.

19             With regard to the dates that are being proposed, and as I said

20     before, it matters little to me whether or not it's the 4th or the 18th.

21     In terms of the amount of work that is on my plate right now, I think

22     that you appreciate probably better than anybody what I'm going to be

23     looking forward to doing in the ensuing months no matter what case I'm

24     involved in.  So -- and I'll leave my comments there.

25             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

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 1             Mr. Harvey.

 2             MR. HARVEY:  Your Honour, I associate myself entirely with what

 3     Mr. Guy-Smith has just said.  The real issue I think that's likely to be

 4     taking up some time is figuring out the mechanics whereby Shefqet Kabashi

 5     and the other witness can be brought before this Court in one form or

 6     another or how else the Prosecution may seek to deal with those witnesses

 7     who really are the core issue that the Appellate Chamber has referred

 8     back to the re-Trial Chamber.  And so it's on that basis that I would say

 9     that the earlier we know from the OTP how things stand in their

10     discussions with the jurisdictions where those individuals are, how those

11     individuals are responding, and what the likely mechanics are going to

12     be, then the earlier we know that the earlier -- and I say "we," the

13     earlier you know that, Your Honour, the earlier you are going to be armed

14     with the ability to decide when this trial should go forward.  All other

15     issues ought to be capable of resolution between the parties, whether

16     it's on Mr. Dixon's date or Mr. Rogers's date.

17             JUDGE MOLOTO:  Thank you so much.

18             I perceive a potential point of difference between the Defence as

19     a group on the one hand and the Prosecution on the other, and this seems

20     to relate to the interpretation of how this trial is perceived to unfold.

21     I am hesitant to venture my view on it.  I urge the parties -- and I'm

22     sure we all understand exactly where the point of difference is, and I

23     urge the parties to come together and try to agree what in fact they

24     understand is required to be done in the re-trial.  Let me just point out

25     quite clearly for purposes of the record the point of difference that I

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 1     perceive.

 2             I hear you, Mr. Dixon, and I saw this also in your written

 3     submission, you're pushing very hard for just getting the evidence from

 4     the initial trial, putting it there, and then calling Shefqet and the

 5     other witness only.

 6             I hear Mr. Rogers saying it could be a little wider than that.  I

 7     could call even witnesses that were not even in the initial trial.

 8             But I think it is going to be a big point of interpretation here

 9     that the parties would want to agree on as to what actually is expected

10     of us by the Appeals Chamber's directions.  And I leave it at that.  I

11     have my own view about it, but I don't want to share it.  I would like to

12     hear the parties on that.

13             Let me then say that on the question of the date, the dead-line,

14     I will go with the Prosecution for the simple reason that they are the

15     dominus leaders, and they -- as Mr. Rogers said, he wouldn't have given

16     these dead-lines if he wasn't sure that he would meet them.  And I must,

17     therefore, accept that he would not be able to meet the dead-line of the

18     4th of November; therefore, he would prefer to stay with the 18th.

19             However, if agreements are not finalised before the

20     18th of November, the Prosecution will not know what witnesses or

21     exhibits it will wish to use before the 18th.  So the Prosecution would

22     only have 12 days in which to prepare its list of witnesses after the

23     parties file a joint motion on what has been agreed.  And identifying

24     witnesses can be time-consuming.  And you have told me, Mr. Rogers, that

25     12 days would be sufficient time for you.  However, if it is not, I would

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 1     suggest that the parties provide an earlier, at least in the first half

 2     of November, joint motion on what has been agreed.

 3             Is that okay?  Yes, Mr. --

 4             MR. ROGERS:  Your Honour, yes, I would agree with that.  And it

 5     may be sensible to identify a date for that.  Can I make another

 6     suggestion, and it's this:  In light of the representations that I've

 7     heard this afternoon, it may be prudent for us to schedule a further --

 8     and it may be already in Your Honour's mind, but to schedule a further

 9     Status Conference, in, say, four weeks, in order for us to assess with

10     you progress.  And we will then know how we're getting along.  I find

11     that often court dates concentrate the mind wonderfully on progression of

12     cases.  We'll know how we're getting along and what areas we've reached

13     agreement on and what areas we have not.  And to the extent that may be

14     jeopardising the timetable that we have agreed upon today.

15             The reason I say that is that I, first of all, detected the

16     difference that Your Honour detected, but I also detect a difference of

17     approach between my learned friends as to what may be capable of

18     agreement.  Mr. Dixon on the one hand appears to be more - I say this

19     with great deference to my learned friends - more pro-active in preaching

20     agreed fact and agreed issue-type determinations; and my other learned

21     friends appear to be more content with agreeing what was said before, for

22     the whole case to be re-tried on paper and/or perhaps with some other

23     evidence.  But I don't see it quite the same way.  I would like us to try

24     to agree some of the issues in the case, such as the armed conflict,

25     because we made need to take a view on the sufficiency of the evidence

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 1     relating to the various issues in the case, as it was presented

 2     previously.  And I wouldn't want us to have to supplement that, if it's

 3     not necessary so to do.

 4             So my learned friends and I, I think, need to get together

 5     soon - I think we will - and see where we're heading.  And I might

 6     suggestion, Your Honour, if I may, that we fix another date to meet

 7     together with Your Honour to update you on the progress so far.

 8             JUDGE MOLOTO:  Thank you for that contribution.

 9             Anyone?  Mr. Dixon, would you like to contribute to what

10     Mr. Rogers has just said?

11             MR. DIXON:  Yes, thank you, Your Honour.  I would support that

12     suggestion because it would provide an opportunity to assess the

13     dead-lines that have been ordered.  And I would also ask that those

14     dead-lines, as I think they always are, are seen as the final dead-line.

15     It doesn't mean that the parties couldn't strive to achieve something

16     earlier than that in order to make progress.  There's no reason why we

17     have to work right up to the dead-line if we can go a lot quicker.  And

18     the further meeting in four weeks, if that were to be ordered either as a

19     65 ter meeting or as a Status Conference, could provide an opportunity to

20     assess how quickly we have been able to move.

21             JUDGE MOLOTO:  Okay.  Thank you.

22             Mr. Guy-Smith.

23             MR. GUY-SMITH:  I concur with the notion that we have an interim

24     date.  I believe that Mr. Rogers, however, in some senses, misapprehends

25     what my position is.  I am not interested in trying -- re-trying the

Page 18

 1     whole case on paper.  What I am interested in doing is not re-trying

 2     those counts that have already been tried with regard to the evidence

 3     that has been presented.  There is discrete evidence that has been

 4     presented with regard to counts -- those counts that I mentioned before.

 5     We've heard viva voce testimony from a number of witnesses, and we've

 6     received evidence on those counts.  My suggestion - I will make it again

 7     and I will continue to make it - is as to that information, those facts

 8     which have been tried.  There is no reason to re-invent that particular

 9     wheel.  And I urge all parties to consider taking that body of evidence

10     which exists as a complete and full record of that testimony and that

11     evidence for the consideration of the Chamber.

12             Now, there is further evidence that may be necessary, and I

13     believe that further evidence can be focused on - as I said before - with

14     regard to those two witnesses.  Beyond that point, I think that

15     Mr. Rogers is not thinking about some things which have to do with a

16     series of legal issues that may well arise that will indeed expand in

17     large measure these proceedings and the time that these proceedings will

18     take because there are some very fundamental legal issues that

19     potentially can be either addressed or avoided, depending on how we

20     choose to present this case in this re-trial, limited re-trial, at this

21     time.

22             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

23             Mr. Harvey.

24             MR. HARVEY:  Yes, Your Honour.  I think the reason that I side

25     with the general approach that Mr. Guy-Smith is urging on the Court is

Page 19

 1     because when counsel are urged to get together and come up with a list of

 2     agreed facts or agreed adjudicated facts, experience has shown that that

 3     tends to be very convenient for the Court but very time-consuming as

 4     between counsel and things can get bogged down in the precise wording of

 5     what exactly has been agreed.  It may be much simpler, much more

 6     straightforward, to say:  As to those counts which are being re-tried,

 7     this is the body of evidence, these are the transcripts, these are the

 8     videos; and beyond that there is really no need to go in relation to the

 9     evidence that is already in.

10             There are other issues, and Mr. Rogers instances frequently the

11     question of armed conflict, when did it start, et cetera, which are

12     almost certainly capable of relatively easy resolution.  But as we sit

13     here today on the Defence side, we don't know what other issues apart

14     from that are concerning Mr. Rogers.  So the sooner he is able to let us

15     know what it is that he would like us to stipulate to, the sooner we will

16     also let the Trial Chamber know what we can go along with.  But as I say,

17     when it gets down to the precise wording of stipulated facts, things can

18     bog down and cause us unnecessary grief on all sides.

19             Thank you, Your Honour.

20             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

21             MR. GUY-SMITH:  If I might, Ms. Rohan just reminded me of

22     something, and I think it may be of some assistance both to the Chamber's

23     consideration as well as to Mr. Rogers's consideration, since he seems

24     quite focused on the issue of armed conflict.  The issue of armed

25     conflict was not appealed.  A determination was made by the

Page 20

 1     Appeals Chamber with regard to this issue.  It is --

 2             JUDGE MOLOTO:  Sorry, sorry.  It was not appealed and a

 3     determination was made by the Appeals Chamber?

 4             MR. GUY-SMITH:  It was not -- it was recognised in the judgement

 5     there was an armed conflict.  So with regard to that particular issue,

 6     may I suggest, quite gently, that perhaps the principle of law of the

 7     case might be something that would be of assistance to our discussion in

 8     terms of a number of different ways of trying to figure out how best to

 9     focus this partial re-trial.

10             JUDGE MOLOTO:  Okay.  Thank you so much.

11             Again, from what I hear, I can see where the Defence comes from

12     and where the Prosecution comes from.  I urge the parties to try and

13     strive towards a common understanding of what is expected because I think

14     this is the nub of the problem as I see it.

15             Let me then say that I'll make an order that the parties file a

16     joint statement on what has been agreed by the 18th of November.  Okay.

17             The Trial Chamber notes that on the 26th of November, 2007, the

18     parties filed a joint motion on agreed facts concerning the recovery and

19     identification of bodies as well as autopsy results.  Some of these

20     agreed facts relate to counts on which the re-trial has been ordered.

21             Now, at the 65 ter Conference, the parties were asked whether

22     they could file a joint motion confirming this agreement for the partial

23     trial.  I understand that the Prosecution and the Haradinaj Defence

24     indicated that they could do this and that the Balaj and Brahimaj

25     Defences were more cautious but certainly allowed for the possibility.  I

Page 21

 1     would urge, again, the parties to endeavour to reach an agreement on this

 2     and also request that they identify those facts that are relevant to the

 3     partial re-trial.

 4             Just a small part of the bigger part of the agreed facts.  Okay.

 5             Now, with regard to disclosure.  Firstly, I understand that the

 6     Defence teams still have the supporting material which accompanied the

 7     indictment in the original trial, and I would be grateful if each of the

 8     Defence teams would confirm this.

 9             Mr. Dixon?

10             MR. DIXON:  Yes, thank you, Your Honour.  I can confirm this.

11             JUDGE MOLOTO:  Thank you so much.

12             Mr. Guy-Smith?

13             MR. GUY-SMITH:  Indeed we do.

14             JUDGE MOLOTO:  And, Mr. Harvey?

15             MR. HARVEY:  As do we.

16             JUDGE MOLOTO:  Okay.

17             So then the Rule 66(A)(i) disclosure has been completed.  We can

18     record that.

19             Rule 66(A)(ii) disclosure can only be completed once the

20     Prosecution has identified all the witnesses it will be calling.  And the

21     time-line for Rule 66(A)(ii) disclosure will be set later.  Okay.

22             Let me take this opportunity to remind the Prosecution of its

23     ongoing obligation, pursuant to Rule 68, to disclose to the Defence any

24     material which in the actual knowledge of the Prosecution may suggest

25     innocence or mitigate the guilt of the accused or affect the credibility

Page 22

 1     of the Prosecution evidence.

 2             Mr. Rogers, just to remind you of that.

 3             MR. ROGERS:  I'm very well aware of it, Your Honour.  Thank you.

 4             JUDGE MOLOTO:  Thank you so much.

 5             I understand that there was a discussion of the timings of the

 6     Defence pre-trial briefs at the 65 ter Conference.  Since this is a

 7     partial re-trial, I do not consider that the Defence will require much

 8     time to prepare their pre-trial briefs after the filing of the

 9     Prosecution pre-trial brief.

10             Mr. Dixon, do you have anything to say about the filing of the

11     pre-trial brief?

12             MR. DIXON:  Your Honour, in the 65 ter Conference we did indicate

13     that we could follow a very abridged timetable to file our pre-trial

14     brief in order to accommodate the earliest possible start date for the

15     trial.  And I would just reiterate it again for the record that because

16     of the nature of this partial re-trial, we would be in a position to

17     respond very quickly to the Prosecution pre-trial brief and could do that

18     in a period shorter than even allowed in the Rules in order to ensure

19     that there is no delay at that point.

20             JUDGE MOLOTO:  Thank you very much for that, Mr. Dixon.

21             Mr. Guy-Smith.

22             MR. GUY-SMITH:  I took then and I take now a bit of a more

23     cautious position based on a number of factors, some of which the Chamber

24     is aware of in terms of how quickly we can respond.  We will endeavour

25     our best to respond as quickly as possible.  And if there is a shortened

Page 23

 1     period of time, we will do our best to do that; and if there are

 2     difficulties, we will let the Chamber know what those difficulties may

 3     be.

 4             JUDGE MOLOTO:  Thank you so much.

 5             Mr. Harvey.

 6             MR. HARVEY:  I respectfully share Your Honour's view that there

 7     is not much that is likely to need to be added to what was the original

 8     pre-trial brief.  I think I should be able to keep within any timetable

 9     that will be set by a Court.  I think the Court is aware that I, together

10     with Ms. Rohan, have another obligation before the Tribunal which is

11     rather paper-heavy and time-consuming; but, nevertheless, we will do

12     everything we can to stay within any dead-line set by the Court.

13             JUDGE MOLOTO:  Thank you very much, Mr. Harvey.

14             Let me then make an order that the Defence teams file their

15     pre-trial briefs within 14 days of the dead-line for filing the

16     Prosecution pre-trial brief, in other words by the

17     14th of December, 2010.  Would that be okay?  Let me check again with

18     you.

19             That would be fine with you, Mr. Dixon, from what I heard you

20     say?

21             MR. DIXON:  Yes.

22             JUDGE MOLOTO:  That's right.

23             MR. DIXON:  Certainly, Your Honour.  And as I indicated, it could

24     be done sooner, depending on when a trial date was to be set.

25             JUDGE MOLOTO:  Indeed.  Indeed.

Page 24

 1             Mr. Guy-Smith, notwithstanding what you told me, I urge you to

 2     stay within that time-line.

 3             MR. GUY-SMITH:  I understand that.  If you could just remind me

 4     of when the Christmas break is going to be?

 5             JUDGE MOLOTO:  It's on the 20th.

 6             MR. GUY-SMITH:  Ah-ha.  Okay.  Well, I -- we will do our best.

 7             JUDGE MOLOTO:  Mr. Harvey.

 8             MR. HARVEY:  As will we.

 9             JUDGE MOLOTO:  Thank you so much.

10             Now, pursuant to Rule 67(B):

11             "The Defence shall notify the Prosecution within a time-period

12     prescribed by the Trial Chamber or the Pre-Trial Judge of their intent to

13     offer a defence of an alibi and any other special defence."

14             I understand, at the 65 ter Conference, that none of the Defence

15     teams anticipate at this stage that they will present an alibi defence or

16     a special defence.  I would be grateful again if you could confirm that.

17             Mr. Dixon.

18             MR. DIXON:  Yes, I can confirm that, Your Honour, at this stage.

19             JUDGE MOLOTO:  Thank you very much.

20             Mr. Guy-Smith.

21             MR. GUY-SMITH:  At this stage, I can confirm that.

22             JUDGE MOLOTO:  And, Mr. Harvey.

23             MR. HARVEY:  And so can I.

24             JUDGE MOLOTO:  Thank you so much.

25             Now, by the end of November, the Prosecution will have filed its

Page 25

 1     65 ter list of witnesses and exhibits and its pre-trial brief.  The

 2     nature of the Prosecution case in the partial re-trial will be much

 3     clearer at that time.

 4             Now, I take on board what you said earlier, Mr. Dixon [sic], that

 5     we could have another Status Conference in four weeks' time.  And I did

 6     hear the Defence endorsing that.  Are you -- I'm not quite sure how much

 7     you will have accomplished in four weeks.  Wouldn't it make better sense

 8     to have a next Status Conference after these filings, after the 30th of

 9     November?

10             I don't know.  I'm in your hands.

11             MR. ROGERS:  Your Honour, personally, on behalf of the

12     Prosecution, I would prefer it was earlier.

13             JUDGE MOLOTO:  Earlier.

14             MR. ROGERS:  Because I think if we have broken down or have

15     reached log-jams, then we can bring them up -- bring them to the Court's

16     attention.  And it may be that together we can resolve them in a way that

17     doesn't jeopardise the dead-lines and doesn't mean people are having to

18     make applications to change the timetable.

19             JUDGE MOLOTO:  Okay.

20             MR. ROGERS:  The last thing I would want is for us to get a week

21     away or get to the 18th of November and really have achieved very little

22     and then we're having to make changes at a late stage in the proceedings.

23     So I think it would be better to try to achieve a meeting before the end

24     of October.  And it will keep up the pressure on all of us, which is no

25     bad thing sometimes.

Page 26

 1             JUDGE MOLOTO:  Okay.  Having heard the Defence on this point and

 2     having heard that they do endorse this suggestion, can I assume that

 3     Mr. Rogers spoke on your behalf in urging that we make an earlier date?

 4             MR. DIXON:  Yes, Your Honour.

 5             JUDGE MOLOTO:  And you confirm that, Mr. Guy-Smith; and you too,

 6     Mr. Harvey?

 7             MR. HARVEY:  Yes, Your Honour.

 8             JUDGE MOLOTO:  Okay.  Then four weeks from today -- anybody with

 9     a quick arithmetic?  Today is the 23rd -- can we look at --

10             MR. HARVEY:  It would be the 14th --

11             JUDGE MOLOTO:  Of October -- okay.

12             MR. HARVEY:  Or, actually, no.  I'm sorry, it would be the 21st.

13     Sorry.

14             JUDGE MOLOTO:  21st of October.

15             MR. GUY-SMITH:  Which, I understand, is the same day that the

16     Prosecution will be informing us with regard to the status of the

17     witnesses.

18             MR. ROGERS:  Yes.

19             MR. GUY-SMITH:  Very well.

20             MR. HARVEY:  Might I ask, if it makes no difference to anybody

21     else, if it could be the following day when there is no sitting in the

22     other matter in which Ms. Rohan and I are engaged.  That would be a

23     Friday.  I don't know whether that's convenient or not.

24             JUDGE MOLOTO:  I'm actually indisposed for that whole week, so --

25             MR. ROGERS:  Your Honour --

Page 27

 1             JUDGE MOLOTO:  Is it possible to bring it forward to the previous

 2     week?

 3             MR. ROGERS:  Your Honour, I was going to suggest we put it over

 4     to the following week because as my learned friends rightly point out

 5     that we will have produced our report, and it may be that a little period

 6     of reflection between us will assist for the Status Conference in the

 7     following week.  So if there are issues to resolve or discussion that we

 8     can have about how to move things on, then it would be better to deal

 9     with it the following week.

10             JUDGE MOLOTO:  Mr. Rogers, you have been arguing strenuously for

11     an earlier date.  Now you are changing tact.

12             MR. ROGERS:  I did say before the end of the month, Your Honour.

13             JUDGE MOLOTO:  What if there are log-jams between now and then

14     that you said might arise?

15             MR. ROGERS:  Yes, I hope we can unstick them.

16             JUDGE MOLOTO:  Okay.  And, Mr. Dixon, the following week?

17             MR. DIXON:  Yes, Your Honour.  I'm content with that.

18             JUDGE MOLOTO:  And I'm sure you would be too, Mr. Guy-Smith?

19             MR. GUY-SMITH:  I'm in your hands, absolutely.

20             JUDGE MOLOTO:  And, Mr. Harvey?

21             MR. HARVEY:  Yes, if I could ask for an afternoon in that week,

22     that would be, again, more convenient from my perspective.

23             JUDGE MOLOTO:  Yeah.  Mr. Harvey, I don't know whether I can meet

24     your request at this time.  I have no sight of the court schedule for

25     October, so I don't know whether I'm sitting in the morning or in the

Page 28

 1     afternoon in October.  But I can give you a date.  I don't know whether I

 2     can give you a time.

 3             MR. HARVEY:  I'll be there whenever you direct me.  Thank you.

 4             JUDGE MOLOTO:  Thank you so much.

 5             The 25th, Monday the 25th?

 6             MR. HARVEY:  Is a UN holiday, I think.

 7             JUDGE MOLOTO:  Is it?  Come on.  Then we must have -- we will

 8     have to bring it forward, Ms. Registrar.  Is it a UN holiday?

 9             MR. HARVEY:  Yeah, it is a UN holiday.

10             JUDGE MOLOTO:  Okay, Tuesday, the 26th.

11             Is that okay?  And on behalf of Mr. Rogers, I will record his

12     head nodding to say that he agrees.

13             MR. ROGERS:  Yes, Your Honour.

14             JUDGE MOLOTO:  Thank you very much, Mr. Dixon.

15                           [Trial Chamber and Registrar confer]

16             JUDGE MOLOTO:  The very efficient Registrar has just told me that

17     I'm in the afternoon.  Now, I don't know, most of you are also involved

18     in other cases, so we could make a time in the morning to accommodate

19     you, Mr. Harvey.

20                           [Trial Chamber and Registrar confer]

21             JUDGE MOLOTO:  26th we can sit in the morning.

22             MR. HARVEY:  The morning won't accommodate me, but I will

23     accommodate you, Your Honour.

24             JUDGE MOLOTO: [Microphone not activated]

25             THE INTERPRETER:  Microphone, Your Honour.

Page 29

 1             MR. GUY-SMITH:  I --

 2             JUDGE MOLOTO:  You --

 3             MR. GUY-SMITH:  I'm with you, Your Honour.

 4             JUDGE MOLOTO:  That's right.  Okay.

 5             Mr. Dixon, would that be okay in the morning?

 6             MR. DIXON:  Yes, Your Honour, thank you.  That would be.

 7             JUDGE MOLOTO:  And for you, Mr. Rogers, would -- that would be

 8     okay too?

 9             MR. ROGERS:  Absolutely, yes.

10             JUDGE MOLOTO:  Thank you.  Okay, fine.  I'm going to diarise it

11     right away.  Shall we make time?  9.00?  10.00?  What time?

12             MR. ROGERS:  Okay, I'll break cover.  10.00.

13             JUDGE MOLOTO:  10.00, okay.

14             While we are on that point - I don't know whether I'm jumping the

15     gun here - will it be necessary for the defendants to be present?

16             MR. DIXON:  Your Honour, no, it won't be.  And whatever takes

17     place can be communicated back and instructions taken before and

18     afterwards as is usual.

19             JUDGE MOLOTO:  As long as they understand it is their right to be

20     here should they so wish.

21             MR. DIXON:  Yes, indeed.

22             MR. GUY-SMITH:  Mr. Balaj does, and we have an indication that

23     would not be necessary.

24             JUDGE MOLOTO:  Okay.

25             MR. HARVEY:  For Mr. Brahimaj the same.  Thank you, Your Honour.

Page 30

 1             JUDGE MOLOTO:  Thank you so much.  Okay.

 2             We will then hold a Status Conference on the 26th -- I've made

 3     the first mistake.  I diarised it for the 25th.  On the 26th of October

 4     at 10.00 in the morning, courtroom to be determined.  Okay.

 5             On the basis of the filings that will have been made by the

 6     30th of November, I intend to draw up the remainder of the pre-trial

 7     work-plan and issue orders scheduling the remaining preparations for the

 8     partial re-trial, including the filing of any 92 bis or ter motions, the

 9     completion of the disclosure under Rule 66(A)(ii), the

10     Pre-Trial Conference, and the start of the trial.  So all those things I

11     think we should leave pending for now until after that Status Conference.

12             Pending motions, are there any motions that the parties plan to

13     file in this phase, pre-trial phase?

14             Mr. Rogers.

15             MR. ROGERS:  Not at this stage, Your Honour, no.

16             JUDGE MOLOTO:  Mr. Dixon.

17             MR. DIXON:  No, Your Honour, not at this stage.  But, of course,

18     that may change, and we'll notify the Chamber accordingly as soon as that

19     is the case.

20             JUDGE MOLOTO:  And, of course, Mr. Dixon, while you are on your

21     feet, the joint motion on agreed facts is welcome any time, even

22     yesterday.

23             MR. DIXON:  Yes, and we will be trying to do it as fast as that,

24     Your Honour.  Thank you.

25             JUDGE MOLOTO:  Thank you.

Page 31

 1             Mr. Guy-Smith.

 2             MR. GUY-SMITH:  I'm in agreement.

 3             JUDGE MOLOTO:  And, Mr. Harvey.

 4             MR. HARVEY:  As am I.

 5             JUDGE MOLOTO:  Thank you so much.

 6             Now, do you have any questions or issues you wish to bring to my

 7     attention regarding the health or treatment of the defendants in the

 8     UNDU?  Or maybe let me address myself to the defendants themselves.

 9             Mr. Haradinaj, do you have anything you would like to bring to my

10     attention regarding your health or how you are treated in the UNDU?

11             THE ACCUSED HARADINAJ:  No, Your Honour.  It's all okay.

12             JUDGE MOLOTO:  It's all okay.

13             THE ACCUSED HARADINAJ:  Yes.

14             JUDGE MOLOTO:  I'm very pleased to hear that.

15             Mr. Balaj.

16             THE ACCUSED BALAJ: [Interpretation] Everything is okay,

17     Your Honour.  Thank you.

18             JUDGE MOLOTO:  Thank you so much.

19             Mr. Brahimaj.

20             THE ACCUSED BRAHIMAJ: [Interpretation] I have nothing to raise,

21     Your Honour.

22             JUDGE MOLOTO:  Thank you very much, Mr. Brahimaj.

23             Now, are there any other items that the parties which to raise

24     which I may have forgotten or which have occurred to the parties in the

25     interim since the last 65 ter Conference?

Page 32

 1             Mr. Rogers.

 2             MR. ROGERS:  No, Your Honour.  Thank you.

 3             JUDGE MOLOTO:  Mr. Dixon.

 4             MR. DIXON:  No, thank you, Your Honour.

 5             JUDGE MOLOTO:  Mr. Guy-Smith.

 6             MR. GUY-SMITH:  No, Your Honour.

 7             MR. HARVEY:  Your Honour, the only matter that does cause me some

 8     trouble is that there are very, very few Albanian interpreters available

 9     to the Defence.  I just mention this.  It's not a matter for Your Honour

10     to cure; I'm really raising it and throwing it to the booth across just

11     to see if anybody can throw any suggestions in my direction because from

12     time to time the need, of course, arises for me to speak with my client

13     who has done very well at trying to learn as much English as possible,

14     certainly much better than I have in trying to learn any Albanian.  The

15     two people that we have relied on in the past are no longer available to

16     us, and the issue of things like the provisional release decision not yet

17     being translated and available to my client in a language that he can

18     really appreciate and understand is an ongoing problem.  I know

19     interpretation issues are difficult here, but if anybody can assist us at

20     all in identifying people who may be able to help me out from time to

21     time in my visits with my client at the Detention Unit, I would be most

22     grateful.

23             JUDGE MOLOTO:  Thank you for telling us about that, Mr. Harvey.

24             Now, I must confess my complete ignorance on how you work,

25     particularly as the Defence, with respect to the use of interpreters.  Do

Page 33

 1     you use the same interpreters that are used by the Court?

 2             MR. HARVEY:  They're not usually available to us, certainly while

 3     we're on trial they're not because, of course, they have their own

 4     responsibilities here.  It's normally arranged through OLAD.  But my last

 5     communication with OLAD, the only person they could offer me was somebody

 6     who is currently studying in Italy, and it would cost me about a thousand

 7     euros out of my own pocket each time I wanted to bring that person here

 8     to interpret.  So that's obviously not going to work.

 9             I will take it up with OLAD again.  I don't need to trouble

10     Your Honour with it.  I have to say I was largely using this opportunity

11     to speak to these interpreters who are here with us today and see if they

12     may be able to communicate with me afterwards and see if they can give me

13     any help.

14             JUDGE MOLOTO:  Thank you so much.  Then I hope the interpreters

15     in the Albanian booth have heard what Mr. Harvey has had to say.  And to

16     the extent possible, if you can meet him halfway it would be appreciated.

17     Thank you so much.

18             There will be no further business.

19             The Court stands adjourned.

20                           --- Whereupon the Status Conference

21                           adjourned at 3.59 p.m.