Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 23 February, 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

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

 7     courtroom.  Madam Registrar, will you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honour.  Good morning everyone

 9     in and around the courtroom.  This is case number IT-04-84bis-PT, the

10     Prosecutor versus Haradinaj et al.

11             JUDGE MOLOTO:  Thank you so much.  Can we have appearances for

12     the day, please, starting with the the Prosecution.

13             MR. ROGERS:  Yes, good morning, Your Honour.  Paul Rogers

14     appearing for the Prosecution, together with Aditya Menon and

15     Ms. Elena Martin, and our Case Manager today, Ms. Donnica Henry-Frijlink.

16             JUDGE MOLOTO:  Thank you very much.

17             And for the Defence, starting with Mr. Haradinaj.

18             MR. EMMERSON:  Good morning, Your Honour.  Ben Emmerson appearing

19     for Ramush Haradinaj, together with Mr. Rod Dixon, assisted by

20     Ms. Annie O'Reilly and Mr. Andrew Strong.

21             JUDGE MOLOTO:  Thank you very much, Mr. Emmerson.

22             And for Mr. Balaj.

23             MR. GUY-SMITH:  Good morning, Gregor Guy-Smith, Colleen Rohan,

24     Chad Mair, and Gantian Zyberi on behalf of Mr. Balaj.

25             JUDGE MOLOTO:  Thank you so much.

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 1             And for Mr. Brahimaj.

 2             MR. TROOP:  Good morning, Your Honour.  Paul Troop appearing for

 3     Mr. Brahimaj, assisted by Ms. Sophie Rigney.

 4             JUDGE MOLOTO:  Thank you so much.

 5             This is the first time we are meeting in the new year and I know

 6     it's very deep into the year, but let me take this opportunity just to

 7     welcome you back and wish you a happy new year.  This is a very small

 8     courtroom for this kind of people.  Is everybody comfortable,

 9     particularly on that side?  You are okay.  Thank you so much.

10             Well, now, pursuant to Rule 65 bis A of the rule, the purpose of

11     a Status Conference is to organise exchanges between the parties so as to

12     ensure an expeditious preparation for trial and review the status of this

13     case and to allow the accused to raise issues, including issues related

14     to his mental and physical condition.

15             This is the third Status Conference in this case.  Now, the last

16     Status Conference was held on the 26th of October, 2010, and this Status

17     Conference is being held now because Rule 65 bis A requires that a Status

18     Conference should be held within 120 days of the last Status Conference.

19             It is, however, important to raise the implications of the

20     Trial Chamber's decision on application on behalf of Ramush Haradinaj for

21     certification pursuant to Rule 73 B.  Until the Appeals Chamber decides

22     on appeal on the Haradinaj Defence, there will be uncertainty about the

23     scope of the indictment and about which witnesses the trial Chamber

24     should here.  This plainly limits the effective planning that can be made

25     for the trial in the interim.  In addition to that, the Balaj Defence

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 1     also filed a motion for certification to appeal the Trial Chamber's

 2     decision on clarification of indictment.  These two appeals overlap and

 3     they deal with issues which really are putting brakes on what can be done

 4     pending the appeal.

 5             I don't know whether the parties have any comments to make on

 6     this issue.  Yes, Mr. Emmerson.

 7             MR. EMMERSON:  Your Honour, it's obviously correct to say that

 8     pending the outcome of the Haradinaj appeal in particular, there are

 9     unanswered questions as to the scope of the retrial.  But it's also right

10     to say, if I can put this matter, so to speak, on the opposite pole or in

11     the opposite side of the scale, that this was a trial which was expected

12     to begin on or around the 24th of January, that Mr. Haradinaj is in

13     pre-trial custody, and that he remains in custody despite originally a

14     decision of the Trial Chamber to admit him to provisional release.  On

15     the clear understanding that the trial would proceed swiftly.  It was

16     then and remains now his imperative that this trial should begin as early

17     as possible, but of course, subject to the competing imperative that it

18     should be confined within the proper scope of the retrial that the

19     Appeals Chamber has ordered.

20             And I put those two competing considerations before the Trial

21     Chamber because whilst it's right to say that certain important questions

22     about the the scope of the trial and the nature of the evidence to be

23     called remain yet to be determined, it does not, in our submission,

24     follow that the continued preparation for trial, both of the parties and

25     with the assistance of the Trial Chamber, should stop.  Because if that

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 1     happens at this stage, there will inevitably be a delay until the Appeals

 2     Chamber judgement is handed down, and once handed down if it is only then

 3     that the the parties are enabled to proceed with their preparation for

 4     trial, then there will inevitably be yet further delay whilst the steps

 5     that are necessary to be completed take place, and in particular I have

 6     in mind the disclosure to the Defence of the axiom at the centre of the

 7     Prosecution's case on the retrial which requires investigation.  That

 8     involves lifting of redactions on the forenamed witnesses in the first of

 9     two outstanding motions and the background disclosure material in respect

10     of Witness 81, that is the second motion.

11             There is no reason in principle while the Trial Chamber cannot

12     now rule upon those motions.  If the Trial Chamber were to do so and to

13     grant them, the time that is being occupied by the Appeals Chamber, can

14     at the same time be occupied by the parties in being ready for trial, in

15     order to secure the objective that once the Appeals Chamber judgement is

16     handed down, we are ready to go.  That is to say, all parties are ready

17     to go.

18             And in our submission, that is something which serves the proper

19     administration of justice in part because further continued delay whilst

20     the accused are in custody is unjust.  And so whilst it's right to say

21     that if one proceeds on the strictest order of business, one would wish

22     the outcome of the appeals judgement to be known before one ruled or

23     invited the Trial Chamber to rule, on the substance of all outstanding

24     motions, there is in principle no reason why the Trial Chamber cannot

25     make those rulings now, and if the Trial Chamber does not make those

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 1     rulings now, the consequence is going to be at least a months and

 2     probably two months additional delay all of which is capable of being

 3     avoided given that the accused are in custody.

 4             And that is not with respect an irrelevant consideration.  The

 5     Trial Chamber has taken the view that given the delay that had already

 6     taken place an order for provisional release was the right result.  The

 7     Appeals Chamber has overturned that decision, but it cannot be the case

 8     that either the Trial Chamber or the Appeals Chamber, certainly not the

 9     Defence, and one would hope not the Prosecution, are indifferent to the

10     interrelationship between avoidable delay and continued pre-trial

11     detention.  This is pre-trial detention with respect to the man who was

12     on provisional release all the way through the original trial and was

13     then acquitted.

14             Is the delay avoidable?  Answer, we respectfully submit plainly

15     it is.  It's avoidable by the Trial Chamber ruling on the two outstanding

16     motions.  And in our submission that is the right course now to pursue.

17             JUDGE MOLOTO:  Thank you very much, Mr. Emmerson.

18             Mr. Guy-Smith, anything you would like to raise?

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

20             JUDGE MOLOTO:  Mr. Troop.

21             MR. TROOP:  No, Your Honour.

22             JUDGE MOLOTO:  Mr. Dixon?

23             MR. ROGERS:  I think you meant Mr. Rogers, Your Honour.

24             JUDGE MOLOTO:  Mr. Rogers.

25             MR. ROGERS:  Mr. Dixon wasn't invited to have another go.

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 1             JUDGE MOLOTO:  I'm sorry, Mr. Rogers.

 2             MR. ROGERS:  Your Honour, we recognise of course there is a

 3     balancing exercise to be undertaken and Your Honour and Your Honours

 4     colleagues have before you all the applications and the arguments in

 5     relation to them, and Your Honours, of course, will recognise that there

 6     is a balance to be struck.  The Prosecution is certainly not indifferent

 7     to accused persons sitting in custody awaiting their trial.  However, my

 8     learned friends have made an application that one of the central tenets

 9     to which is that the case should be restricted.  They also make an

10     application for disclosure relating to a witness they say should not be

11     admitted.  And so far as he is concerned, Your Honours have before you

12     information which indicates that there may be risks to that individual,

13     risks to others.  That is part of the balancing exercise that Your

14     Honours have to undertake in determining whether a delayed disclosure

15     application should be granted in relation to that individual.  Of course,

16     if the Appeals Chamber were to rule that that evidence should not be

17     admitted, there is a risk that that individual could be exposed to

18     unnecessary risk to himself, likewise to the others.

19             It's part of the balance which Your Honours have to take into

20     account, and the issues relating to that have been set out and no doubt

21     the Court will determine what the right course of action is.  But

22     certainly we are not indifferent, and I would hope it wasn't being

23     suggested that we were.  I don't think Mr. Emmerson was suggesting we are

24     indifferent.

25             In relation to other disclosure matters, I have last evening sent

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 1     out to my learned friends a response to their various other requests,

 2     it's an additional response to one I'd already provided.  There are some

 3     outstanding disclosure matters that we can attend to.  We are certainly

 4     mindful of that and are progressing it to the best of our ability given

 5     the outstanding motions that exist.  So the Prosecution is very mindful

 6     of its obligations.  We've litigated where we disagree.  We responded, I

 7     hope my learned friends would agree, swiftly to the various requests and

 8     some delays but not excessive, and we are progressing into litigation

 9     where disagreements arise.  So I think the the parties are doing the best

10     they can to progress issues, but we respectfully agree with Your Honour

11     that at this stage of affairs at the moment with outstanding appeals does

12     somewhat put the Trial Chamber in some strait jacket to some extent on

13     how it further progresses.

14             JUDGE MOLOTO:  Yes, Mr. Emmerson.

15             MR. EMMERSON:  The Trial Chamber, with respect, can't be

16     simultaneously conducting a balance, as Mr. Rogers says it is, and yet be

17     in a strait jacket.  The right analogy is a balance, and the only factor

18     that Mr. Rogers puts in the balance against proceeding to rule on these

19     motions now is the suggestion that were the Appeals Chamber to determine

20     that Witness 81 - and let us focus on him for a moment - should not be

21     called at the retrial, the Trial Chamber would have made an order for

22     disclosure in relation to a witness who was not then to be called.

23     What's wrong with that?  Well, says Mr. Rogers, that might expose the

24     witness to risks which are risks that should properly be taken if he is

25     going to be called but need not be taken if he is not going to be called.

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 1     So that, if I may put it this way, significantly reduced consideration is

 2     the only matter Mr. Rogers is in a position to put into the balance on

 3     that side of the scale.

 4             To which the answer is a very simply one, this is a request for

 5     disclosure only to the Defence.  That will be subject to a range of

 6     restrictions, culled from the restrictions that were imposed by the

 7     previous Trial Chamber at the suggestion of the Defence on the disclosure

 8     of information in respect of protected witnesses at the original trial.

 9     There is not now nor could there be the slightest suggestion that those

10     acting for Mr. Haradinaj or Mr. Haradinaj himself or any one on his

11     behalf or in respect of either of the other accused, any individual, is

12     shown to have interfered with witnesses.  Each and every one of the

13     provisional release decisions successively throughout the original trial

14     and thereafter has emphasised, certainly in respect of Mr. Haradinaj,

15     that there is no suggestion of improper conduct by the Defence or the

16     accused or those acting on his instructions or behalf in respect of

17     witness interference.

18             That being the case, there is in reality nothing to put into the

19     scales on the side of delay and every imperative to enable the trial to

20     be ready once the Appeal Chamber gives clear directions as to its scope.

21     And let us be under no misunderstanding, the Defence intends to

22     investigate Witness 81 properly and with appropriate safeguards but to

23     investigate.  The Defence carried out such an investigation in respect of

24     Witness 80, and the material that it revealed, which will in due course

25     potentially be adduced during the trial will, we submit, demonstrate to

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 1     the Trial Chamber the witness is manifestly unreliable and a similar

 2     investigation is inevitable in respect of Witness 81.  It will happen.

 3     And that being the case, in our submission, to put matters back so that

 4     we now wait another five or six weeks for the appeal judgement, then the

 5     Trial Chamber lifts the redactions, and then we have a month or two

 6     months of further investigation, places the start of this trial a good

 7     six months later than it was envisaged.  Six months during which

 8     Mr. Haradinaj remains in custody despite having been provisionally

 9     released throughout the proceedings to date and acquitted of all counts

10     by the original Trial Chamber.  That, with respect, would be an unjust

11     result and one which is eminently avoidable with effective trial

12     management to secure the proper interests of justice.

13             MR. ROGERS:  My learned friend indicates.

14             THE INTERPRETER:  Could the counsel please use the long

15     microphone.

16             MR. ROGERS:  I have the microphone on.

17             THE INTERPRETER:  The longer microphone, please.

18             MR. ROGERS:  Oh, forgive me.  Okay.  Is that better?

19             JUDGE MOLOTO:  Mr. Interpreter, is that better?  Or whoever

20     intervened.

21             THE INTERPRETER:  Yes, it is better, thank you.

22             MR. ROGERS:  I'll try to move to the long microphone.  Your

23     Honours, my learned friend refers to one balancing exercise and one

24     factor which I put into the balance, as he put it.  Your Honours, of

25     course the other one, which I didn't mention, is that my learned friends

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 1     would become entitled and would receive material to which, in fact, they

 2     are not entitled if this witness is not to be admitted.  And they would

 3     have that when in fact the Court determined that that was a person who

 4     should not be called and could not be called before the Court, and

 5     therefore the material that they receive is -- it would, in fact, become

 6     material to which they were never entitled.  That's really the issue

 7     where we stand.  That's one of the issues of where we stand.  And I'm

 8     sure Mr. Emmerson will want to say that, look, that shouldn't be a reason

 9     to stop disclosure.  Your Honours, we could bang on against each other

10     all morning on these particular points, but you have before you the

11     arguments of the parties and you will carry out as I'm sure, and I'm

12     confident you will, and I'm sure my learned friends are of confident that

13     you will, you will carry out the exercise in the interests of justice

14     that we seek you to do.  And there it is.  I'm not going to say anymore.

15     Mr. Emmerson looks as though he wishes to jump to his feet to make

16     perhaps the same point again.

17             JUDGE MOLOTO:  Is that a fact, Mr. Emmerson?

18             MR. EMMERSON:  I certainly don't want to make the same point

19     again, but as soon as Mr. Rogers raises a new point that he didn't raise

20     when he had the opportunity to respond, may I simply correct him, it is

21     completely wrong to suggest that the Defence are not entitled to this

22     material if in due course the Prosecution doesn't call the witness.  The

23     Defence are always entitled under the rules to disclosure in respect of

24     each witness that the Prosecution intends to rely upon.  Were this not a

25     retrial but a trial, we would be entitled to that disclosure as of right

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 1     and it would have occurred.  Indeed, in respect of one witness, the

 2     Prosecution has not yet even served the witness' statement on Defence,

 3     that's 77.  It is a complete misrepresentation of the position under the

 4     rules to suggest that the entitlement of the Defence to disclosure arises

 5     only at the moment that the witness is in fact called by the Prosecution

 6     at trial.  Many witnesses are in the end not called, but the Defence's

 7     right to entitlement to disclosure crystallises at an earlier stage, it

 8     crystallises at the stage when it becomes necessary for the fair

 9     preparation for trial.  We are at that stage this morning.

10             JUDGE MOLOTO:  Thank you very much, Mr. Emmerson.  I believe

11     that's the end of the submissions that the parties would like to make.

12             Let me just indicate that I've heard what you've said

13     Mr. Emmerson, I've heard what you've said, Mr. Rogers.  As we indicated

14     in the various e-mails that were exchanged when this issue was raised by

15     the Defence, this is an issue that is actually before the Trial Chamber

16     and not before the Pre-Trial Judge, and I have heard it.  I've heard the

17     submissions of the parties, I'll put this before the Chamber, and the

18     Chamber will decide the issues as expeditiously as it possibly can,

19     taking into account the interests of justice and balancing the issues

20     that were raised in the submissions this morning.  Thank you very much.

21             I might sound like I'm contradicting myself in the next point,

22     the next point I would like to raise is the point of agreed facts.

23     Again, a point which may be bedeviled by the very fact that the appeals

24     are still pending; however, be that as it may to the extent that it is

25     possible for the parties to agree any further facts, I would ask the

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 1     parties to and urge them to continue to do so.

 2             Yes, Mr. Emmerson.

 3             MR. EMMERSON:  Can I indicate, and this rather reinforces the

 4     point I was making a moment ago, it's well understood now between the

 5     parties and I hope in communications to the Trial Chamber --

 6             JUDGE MOLOTO:  You are not re-opening the --

 7             MR. EMMERSON:  No, no.  I'm not re-opening it.  I'm responding to

 8     the point that you've made just a moment ago, Your Honour, that we cannot

 9     take agreed facts any further not because of the outstanding Appeals

10     Chamber judgement, although that may effect the facts that are finally

11     admitted, but because disclosure has not been given.  Until disclosure

12     has been given we account agree the remaining outstanding potentially

13     agreeable facts which is another reason why with respect disclosure needs

14     to be resolved as quickly as possible.

15             JUDGE MOLOTO:  I have two counsel on their feet.

16             Yes Mr. Guy-Smith.

17             MR. GUY-SMITH:  Yes, I avoided the last fencing match, although I

18     concur with Mr. Emmerson.  And with regard to the last match and with

19     regard to what was just said, I cannot stress how important it is that we

20     have full disclosure before we could begin to engage in the exercise

21     suggested by Your Honour.  It is impossible at this time.

22             JUDGE MOLOTO:  I note the point.  Okay.  I would like to deal

23     with the status of the accused and I would like to find out from each of

24     the accused whether you have any questions or issues you wish to bring to

25     my attention regarding your health or the treatment you are receiving at

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 1     the UNDU.  We'll start with you, Mr. Haradinaj.

 2             THE ACCUSED HARADINAJ:  Your Honour, everything is okay.  No

 3     question.

 4             JUDGE MOLOTO:  Thank you so much, Mr. Haradinaj.

 5             Mr. Balaj.

 6             THE ACCUSED BALAJ: [Interpretation] Your Honour, everything is

 7     okay.  Thank you.

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

 9             Mr. Brahimaj.

10             THE ACCUSED BRAHIMAJ: [Interpretation] I have nothing to add,

11     Your Honour.

12             JUDGE MOLOTO:  Thank you so much, Mr. Brahimaj.

13             Any other items the parties wish to raise?

14             Mr. Rogers, I see you.

15             MR. ROGERS:  Yes, Your Honour.  There are two matters, and one

16     relates to Mr. Kabashi.  Your Honours, I raised with my learned friends

17     last evening that in our opinion it will be necessary to apply for a

18     videolink to begin to receive any testimony that he may wish to give.

19     His current position is that he does not wish to testify.  We have

20     received some explanation as to the basis for that which I have disclosed

21     to my learned friends.  I hope that they have received it.  I hope there

22     was some movement -- yes, I'm seeing nods.  They have received the

23     explanation from the individual.  Your Honour, I understand from my

24     learned friends that they will oppose any videolink application, and my

25     question for Your Honour is should we make that application in advance of

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 1     determination of these remaining issues prior to any date being set for

 2     trial, or should we wait until we know when the date set for trial is so

 3     that we can deal with it with any necessary subpoena and/or warrant

 4     application at the same time?

 5             Which leads me to my next point.  I know that we are all a little

 6     uncertain as to when the actual trial date will be.  The Prosecution

 7     would certainly wish for at least six weeks notice of when that trial

 8     date will be so that we can make whichever necessary applications we need

 9     to make if it's, for example, a videolink application, and also that

10     appropriate visa and travel arrangements can be made for such witnesses

11     as require them.  I make that -- I just put that on the table now so that

12     Your Honour is aware of the sort of time notice that we would need to

13     ensure that that the trial could start efficiently as I understand it.

14     It may be my learned friends require more notice than that or would wish

15     for more notice than that, but I thought it helpful at least to indicate

16     to Your Honours where we stand.  I know it's difficult in identifying

17     time before the Tribunal, but that is the type of notice we would need to

18     ensure it moves smoothly on the first day.

19             So, Your Honour, there is it is.  I just wanted to put on the

20     table the question of Mr. Kabashi so that it's before you and you are

21     aware that there is an issue relating to him and which may effect the

22     modalities of the proceedings before the Tribunal.

23             JUDGE MOLOTO:  Okay.  Before I comment, I don't know whether --

24     yes, Mr. Emmerson.

25             MR. EMMERSON:  Your Honour, can I say that as these discussion

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 1     moves forward, it may well be that a solution suggests itself from the

 2     competing interests of the parties.  If Mr. Rogers' request for six weeks

 3     notice were to be taken as a six week delay on top of all the other

 4     delays, then we would strongly resist it.  If on the other hand that

 5     time-frame runs coterminously with the delay that we are already

 6     inevitably facing, then there is no loss of time as a result.  So the

 7     solution may well be for the Trial Chamber to fix a date for trial

 8     sufficiently far in advance to be confident but by that time we will have

 9     the Appeals Chamber judgement.  May I suggest hypothetically, the 1st of

10     May.  That gives the Prosecution two months, slightly longer than they

11     are asking for, to get their tackle in order and to be ready to start the

12     trial, and providing Your Honour and the Trial Chamber accede to the

13     request of the Defence to order disclosure now, it also gives the Defence

14     two months to conduct investigations.  And though it will mean that my

15     client has remained in custody for four months longer than was expected,

16     it will keep that unjust additional delay to a minimum.

17             All of which, with respect, points to the conclusion that the

18     Trial Chamber should set a date, give the Prosecution notice that that is

19     when they need to be ready, put the Defence in a position so that they

20     can be ready for that date, and enable everyone to know that this is not

21     a trial that is going to stall and start and sputter indefinitely

22     throughout this year, that the Trial Chamber means to get to grips with

23     the procedure.  Now, obviously if that date has to be moved back for

24     reasons that are unavoidable on either side, then either side can make an

25     application to move it.  But without a date, these proceedings begin to

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 1     look as though they are not effectively moving forwards.  But obviously

 2     if the Trial Chamber fixes a date, then we need disclosure now.  So all

 3     of these different considerations, including Mr. Rogers' own latest

 4     consideration, points towards the fixing of a date on or about the 1st of

 5     May, coupled with disclosure now and notice to the Prosecution now and

 6     then what seem otherwise to be time-wasting tactics on the part of the

 7     Prosecution, I'm sure that is a not the way they were intended but that

 8     is certainly the effect that they will have, can by the Trial Chamber's

 9     own effective management of the proceedings be brought together to give

10     these proceedings the appearance that they are entitled to have; namely,

11     proceedings that are being conducted expeditiously, efficiently, and in

12     that manner that secures a fair and swift trial.

13             JUDGE MOLOTO:  Mr. Guy-Smith, do you have anything to say to this

14     point?  You don't have to.

15             MR. GUY-SMITH:  Thank you.

16             JUDGE MOLOTO:  Mr. Troop.

17             MR. TROOP:  Your Honour, I would agree with Mr. Emmerson, but I'd

18     just like to add one further point in relation to fixing a trial date.

19     It would be of great convenience to the counsel that Mr. Brahimaj would

20     wish to act for him in the trial to have some clarity when the trial date

21     is likely to be so that we can ensure that the counsel he has chosen are

22     in fact available for that trial.

23             JUDGE MOLOTO:  Thank you, Mr. Troop.

24             The issue that Mr. Rogers raises of videolink --

25             MR. EMMERSON:  Our position is a simple one, Your Honour.  The

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 1     Prosecution secured a retrial in this case by complaining to the Appeals

 2     Chamber that two witnesses could not be called and were not called by the

 3     Trial Chamber.  The position now is that one of those two witnesses is

 4     currently continuing to be unwilling to testify.  If one can put it

 5     crudely, half the justification for this retrial has disappeared.  We

 6     will see what applications the Prosecution makes in terms of subpoenas

 7     and videolinks, but all of those applications were made in the original

 8     trial and resulted in a witness not claiming that he was scared but being

 9     unwilling to testify.

10             Therefore, we will respond to such applications as the

11     Prosecution makes and we will do so having regard to the history, to the

12     applications that were made at the original trial which included this

13     witness attending, refusing to testify, being warned of contempt, being

14     held in contempt, a videolink order, testifying -- being brought to

15     testify again, still refusing to testify.  Your Honour has a very sorry

16     history to deal with with this witness, and we will look and see in due

17     course what applications the Prosecution makes and we will respond to

18     them.

19             JUDGE MOLOTO:  I understand, and may I suggest we don't deal with

20     the application just yet.

21             MR. EMMERSON:  Precisely.

22             JUDGE MOLOTO:  We -- let's --

23             MR. EMMERSON:  It is in a sense for the the Prosecution to

24     determine when is the right time to make its application, and no doubt it

25     is in close contact with the lawyers acting for Mr. Kabashi both in this

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 1     Tribunal and in the United States who, one would hope, after an interval

 2     of several years now have had an adequate opportunity to give their

 3     client fully informed legal advice.

 4             JUDGE MOLOTO:  May I raise the point, the point I wanted to ask

 5     was, and I understand that when a motion for videolink is being filed it

 6     is appropriate to have a date of hearing mentioned in it.  The way I

 7     heard Mr. Rogers when he raised the point, it sounded to me like the

 8     Defence is opposed to videolink in principle, and I wanted to find out if

 9     is it not possible and practical to file a motion in principle to call

10     Mr. Kabashi by videolink and put your arguments there, even if there is

11     no date, and let the parties make their submission.  Let's flesh out the

12     principle of the videolink hearing, what the Defence objects to, and why

13     the Prosecution want it.  Then we can give a decision in principle.

14     Comes the time when a date is set and I don't know whether he is going to

15     be testifying on the first day of trial, but a date can be given to him

16     when is he going to testify.

17             MR. EMMERSON:  Yes.  And I see no reason in principle providing

18     the Prosecution is in a position to update the Defence and Trial Chamber

19     on precisely what steps are being taken in relation to communicating with

20     Mr. Kabashi and his lawyers and everybody is fully informed.  If that's

21     the case I see no reason.

22             JUDGE MOLOTO:  I would imagine that they would make their

23     submissions, Mr. Emmerson.

24             MR. EMMERSON:  Yes.

25             JUDGE MOLOTO:  And I don't know how they plan to conduct their --

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 1     how to prosecute this application for --

 2             MR. EMMERSON:  Yes, and may I simply add this:  That of course it

 3     can be done in principle, equally it can be done with a hypothetical

 4     date.  So were the Trial Chamber to accede to the suggestion that I make

 5     of the 1st of May as the effective start of the trial, the 4th of May

 6     could be set as a date for Mr. Kabashi's first attempt to testify.  But

 7     if experience of the past trial is anything to go by, there will have to

 8     be several attempts made before the Prosecution either is in a position

 9     to call him or to abandon him.  So an early date within the trial would

10     be sensible.

11             JUDGE MOLOTO:  Let's not anticipate that.  I guess the idea is we

12     can get a principled decision on whether or not videolink is going to be

13     used and what problems the Prosecution encounter, if any, in securing the

14     attendance of Mr. Kabashi.  That is their problem.  They will deal with

15     that.

16             MR. EMMERSON:  Sorry, what I was simply seeking to emphasise, and

17     I hope that in the way in which this issue has matured during the course

18     of this Status Conference, there was a very practical suggestion on the

19     table for the Trial Chamber as a whole to consider which is to fix a

20     start date of the 1st of May, and were that the case, there's no reason

21     why the application for Mr. Kabashi needs to be made in the abstract.  It

22     can be made with a date for calling him in mind, and let's see what the

23     colour of the Prosecution's cloth really is.

24             JUDGE MOLOTO:  Yes, but Mr. Emmerson that's still in the abstract

25     because it's a hypothetical date.  You don't know whether you are going

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 1     to be sitting on the 1st of May.  You are saying assuming we are able to

 2     sit on the 1st of May.

 3             MR. EMMERSON:  No, I'm inviting the Trial Chamber to go further

 4     and to fix the 1st of May as the trial date.  And if either party needs

 5     to apply to vacate it then they can do so with reason.  I'm inviting, I

 6     think with the support of all the accused, the Trial Chamber to fix the

 7     1st of May as the start date for the trial and all parties thereafter to

 8     work to it.

 9             JUDGE MOLOTO:  We'll put it before the Trial Chamber, we'll find

10     out.  Thank you.

11             Mr. Rogers, when you introduced this point, you then said you

12     moved to the next point, and I must confess to me it looked like you were

13     saying the same point in different words.  Would you like to repeat the

14     next point that you were raising that you said was related to this one of

15     videolink?

16             MR. ROGERS:  Yes, Your Honour.  It really is just about notice.

17     I was asking when should we make the application and it's linked, of

18     course, to the notice required in relation to the trial.

19             JUDGE MOLOTO:  Okay.

20             MR. ROGERS:  And, Your Honour, since I've had the opportunity to

21     make -- just make a comment, Mr. Emmerson suggested that the Prosecution

22     may be indulging in time-wasting tactics, those are the words that he

23     used.  Your Honour, we're not in --

24             JUDGE MOLOTO:  He did say -- he doesn't say it is intended but it

25     may seem like.

Page 86

 1             MR. ROGERS:  Yeah, a tactic is usually intentional, and Your

 2     Honour, we are not indulging in any form of time-wasting tactics, and I

 3     hope that my learned friends will not repeat such a suggestion.

 4             MR. EMMERSON:  Just to be clear, what I suggested is that the way

 5     the Prosecution is conducting itself is wasting time.

 6             JUDGE MOLOTO:  Thank you.

 7             MR. ROGERS:  We don't need to go on about it, I've made my point.

 8             JUDGE MOLOTO:  You have made your point, thank you.

 9             MR. ROGERS:  Your Honour, yes, and six weeks notice was just six

10     weeks notice so that we can get matters up and ready.

11             JUDGE MOLOTO:  Sure.  And am I right to say that if we filed a

12     motion in principle --

13             MR. ROGERS:  Yes.

14             JUDGE MOLOTO:  -- that would do it because we can do it tomorrow.

15             MR. ROGERS:  Yes.

16             JUDGE MOLOTO:  We can file that motion tomorrow, and whenever he

17     comes, the decision has been made.

18             MR. ROGERS:  Your Honour, and I hope you won't ask us to file it

19     tomorrow.  We --

20             JUDGE MOLOTO:  No, I'm not saying tomorrow, but I'm saying as

21     soon as possible.

22             MR. ROGERS:  Yes, we can put a motion together.

23             Your Honour, I raise one other matter with that and that is that

24     it may be that there are some issues relating to the -- to this

25     particular application related to videolink from which you may need to

Page 87

 1     hear from the United States authorities.  Having spoken with them about

 2     practicalities and management of this particular application, then Your

 3     Honour may need to hear from them as to how that can be put into effect.

 4     Obviously the Defence would have access to any filing that they made, but

 5     I make mention of that.

 6             JUDGE MOLOTO:  It just seems to make the point even stronger that

 7     the sooner we file the motion, the better.  And I would imagine that

 8     you'll facilitate our communication with the United States officials.

 9             MR. ROGERS:  Your Honour, we will.

10             JUDGE MOLOTO:  Thank you so much, Mr. Rogers.

11             Are you done with your items, Mr. Rogers, before I turn to

12     Mr. Guy-Smith?

13             MR. ROGERS:  Yes, thank you.

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

15             MR. GUY-SMITH:  Yes, just on that last point so that the Chamber

16     is aware, we've been in this world before as well, and I believe that

17     part of what the issue will be deals with some matters of law as they

18     relate to what remedies exist in the United States for a witness in the

19     position that Mr. Kabashi has taken.  There's a whole other question that

20     will have to be attended to apart from the niceties of whether or not a

21     videolink is available to the Prosecution or not.

22             JUDGE MOLOTO:  That's true.  And I would imagine that all that

23     would be fleshed out in the submissions of the parties.

24             MR. GUY-SMITH:  I would hope.

25             JUDGE MOLOTO:  Thank you, sir.

Page 88

 1             What I wanted to find out from the Defence starting with you,

 2     Mr. Emmerson, is there any other issue that you would like to raise

 3     with --

 4             MR. EMMERSON:  No, Your Honour.

 5             JUDGE MOLOTO:  Sorry.  I almost said "with the Chamber," that's

 6     why I got stuck.

 7             MR. EMMERSON:  I think if I may say so, everything hinges on the

 8     Trial Chamber now fixing a prompt trial date.

 9             JUDGE MOLOTO:  Thank you so much.

10             Mr. Guy-Smith, any issue that you would like to raise?

11             MR. GUY-SMITH:  Not at this time, thank you.

12             JUDGE MOLOTO:  Mr. Troop.

13             MR. TROOP:  No, Your Honour.  Thank you.

14             JUDGE MOLOTO:  Thank you so much.

15             Then a date for the next Status Conference will be set in due

16     course, and there being no further issues to raise the Court will adjourn

17     sine die.

18                           --- Whereupon the Status Conference adjourned

19                           sine die at 9.43 a.m.