1 Thursday, 9 June 2011
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.01 p.m.
6 JUDGE MOLOTO: Good afternoon to everybody in and around the
8 Madam 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 Idriz Balaj, Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you so much.
13 Let me take the opportunity to welcome everybody.
14 Mr. Haradinaj, Mr. Balaj, and Mr. Brahimaj, particularly to all
15 three of you. Can all of you hear me in a language you understand?
16 Mr. Haradinaj?
17 THE ACCUSED HARADINAJ: Yes, Your Honour.
18 JUDGE MOLOTO: Thank you so much.
19 Mr. Brahimaj?
20 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, I do.
21 JUDGE MOLOTO: Thank you.
22 And Mr. Brahimaj.
23 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, Your Honour.
24 JUDGE MOLOTO: Can we please have the appearances, starting with
25 the Prosecution, please.
1 MR. ROGERS: Good afternoon, Your Honour. Paul Rogers appearing
2 on behalf of the Prosecutor, together today with Ms. Daniela Kravetz,
3 Ms. Barbara Goy, and our Case Manager, Ms. Lourdes Galicia.
4 JUDGE MOLOTO: Thank you so much.
5 And for the Defence, Mr. Emmerson.
6 MR. EMMERSON: Your Honour, Mr. Ben Emmerson on behalf of Ramush
7 Haradinaj, together with Rodney Dixon and Annie O'Reilly.
8 JUDGE MOLOTO: Thank you so much.
9 And for Mr. Balaj.
10 MR. GUY-SMITH: Good afternoon, Your Honour, Gregor Guy-Smith on
11 behalf of Idriz Balaj, along with Colleen Rohan, Chad Mair, and our
12 intern, Alexander Smith.
13 JUDGE MOLOTO: Thank you so much.
14 And for Mr. Brahimaj.
15 MR. HARVEY: Good afternoon, Your Honour. Richard Harvey for Mr.
16 Brahimaj, accompanied by Ms. Sophie Rigney. Thank you.
17 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
18 Now, the next item I would like us to deal with is the purpose of
19 the hearing. As we all know, the last Status Conference in this case was
20 held on the 23rd of February, 2011. The Trial Chamber is required,
21 pursuant to Rule 65 bis, to hold a Status Conference within 120 days
22 after the last Status Conference, A, to organise exchanges between the
23 parties so as to ensure expeditious preparation for trial; B, to review
24 the status of the accused's case and to allow the accused to raise issues
25 in relation thereto; C, to allow the accused to raise issues in relation
1 his mental and physical condition and matters relating detention. A
2 meeting of the chairmanship of the SLO and pursuant to Rule 65 ter was
3 convened yesterday to prepare for this Status Conference.
4 Am I right that far? That's correct.
5 On the 31st of May, 2011, the Appeals Chamber issued two
6 decisions dismissing the interlocutory appeals filed by Haradinaj, Balaj,
7 and Brahimaj against the Trial Chamber decision on the shortened form of
8 the fourth amended indictment of the 14th of January, 2011. In
9 accordance with the Appeals Chamber decisions, the operative indictment
10 in this case is the indictment filed by the Prosecutor on the
11 21st of January, 2011, in compliance with the Trial Chamber decision of
12 14 January 2011. With this matter now resolved, the Chamber is able to
13 move ahead with the final preparations for the start of the re-trial.
14 And if I may address myself to the Prosecution on the next point,
15 which I know is not the business of the pre-trial phase, it's the
16 business of the Trial Chamber really. It's not the business of the
17 Pre-Trial Judge. However, in preparation for the Pre-Trial Conference I
18 just wanted to say to you, Mr. Rogers, pursuant to Rule 73 bis of the
19 Rules, the Trial Chamber may call upon the Prosecution to shorten the
20 estimated length of the examination-in-chief for some witnesses or may
21 invite the Prosecution to reduce the number of counts charged in the
22 indictment. With Appeals Chamber decisions of the 31st of May, the
23 Trial Chamber accepts the indictment filed on the 21st of January as the
24 operative indictment and will not invite the Prosecution to reduce the
25 indictment further. The Chamber would like, however, to invite the
1 Prosecution to look again at the list of witnesses and the time proposed
2 for examination-in-chief of these witnesses, to see whether it needs, in
3 fact, all these witnesses and all that time.
4 You may or may not want to comment on it right now because, as I
5 said, it's not the business of this Status Conference, but I just wanted
6 to say, can the Prosecution apply its mind to --
7 MR. ROGERS: Your Honour, of course, the Prosecution will apply
8 its mind to that point. I think we have been fairly conservative, in any
9 event, with the time estimates that we have given, knowing the type of
10 witnesses that we have to call and the evidence that they have to cover.
11 And I think we have really tried to trim it as much as we could in any
12 event. That's my practice, to be as conservative as I can and as
13 cautious as I can.
14 But, Your Honour, I think we could look at it again. There may
15 be some room for a few hours. I can't say anything more than that
16 realistically, knowing the witnesses. And in the case of one or two of
17 them, I may have been overly conservative. So I'm not sure even if I
18 were to give up some, as it were, hours, whether we wouldn't actually
19 lose them again in the modalities of trying to elicit the testimony of
20 particular witnesses involved. Having met with at least two of the most
21 important witnesses it will take a while to get their account out.
22 So with the best will in the world we've tried to be as
23 conservative as we can but as realistic as we can. Of course, I'll look
24 at it again.
25 JUDGE MOLOTO: Thank you so much, Mr. Rogers.
1 I don't think the Defence would like to comment on this? Okay.
2 I see all of you are shaking your heads indicative of no.
3 The next item would be disclosure. I understand that there are
4 no outstanding issues regarding disclosure pursuant to Rule 66 (A)
5 and (B) and 68 for the time being.
6 Is this understanding correct, Mr. Rogers?
7 MR. ROGERS: Your Honour, yes. For the time being there are no
8 outstanding issues. That's correct.
9 JUDGE MOLOTO: And do you confirm, Mr. Emmerson?
10 MR. EMMERSON: Your Honour, that's correct, save in respect
11 obviously of the timetable for trial and the implication of that for
12 disclosure in relation to protected witnesses.
13 JUDGE MOLOTO: We'll talk about that. Thank you so much.
14 Mr. Guy-Smith.
15 MR. GUY-SMITH: Yes, with regard to the specific question asked,
16 we concur.
17 JUDGE MOLOTO: Thank you.
18 Mr. Harvey.
19 MR. HARVEY: As do we.
20 JUDGE MOLOTO: Thank you so much.
21 Agreed facts. On the 19th of November, 2010, the parties filed a
22 joint submission on the existence of an armed conflict in Kosovo. Are
23 there any further matters on which the parties have been able to reach
24 agreement, Mr. Rogers?
25 MR. ROGERS: At present, no, Your Honour. There are no further
1 matters upon which we have reached agreement.
2 I don't know whether this is an appropriate moment to pick up
3 this particular point, but, Your Honour, I think for example in relation
4 to the forensics, we may be able to reach some further agreement in
5 relation to that and reduce it down, but in the current form of the -- of
6 what the Defence are prepared to agree as a whole - and not all of them
7 are the same - but what the Defence are able to agree as a whole, we
8 would still have to call some evidence because it doesn't go far enough
9 in the Prosecution's point of view. There may be another way around
10 that, which is most of these witnesses in fact, if not all of them, are
11 down to be 92 bis witnesses and we have a proposal to make, I think,
12 broadly in relation to their -- the acceptance of their evidence as a
13 whole in any event. So it may be that it's not as important as it may at
14 first seem.
15 JUDGE MOLOTO: 92 bis on the question of forensics?
16 MR. ROGERS: Yes, they're down as 92 bis witnesses, those that
17 cover that area are listed as 92 bis witnesses. So even if we aren't
18 able to reach a form of words that we can all agree, I don't think there
19 is any desire by any of my colleagues to actually re-call these witnesses
20 to give evidence.
21 JUDGE MOLOTO: Any comment, Mr. Emmerson?
22 MR. EMMERSON: Your Honour, there's been a substantial measure of
23 agreement so far as the forensics is concerned, and indeed the Defence
24 have in effect advanced the same agreed facts in relation to forensics as
25 were advanced and accepted by the Prosecution as sufficient in the
1 original trial. So I hope that any remaining issues in relation to that
2 will be capable of being dealt with very shortly indeed.
3 JUDGE MOLOTO: Thank you very much, Mr. Emmerson. That's more
4 comforting than what I heard from Mr. Rogers on the point.
5 Mr. Guy-Smith.
6 MR. GUY-SMITH: I would concur with what Mr. Emmerson said. With
7 regard to the issue of 92 bis witnesses, I think that raises a different
8 kind of a matter.
9 JUDGE MOLOTO: Thank you.
10 MR. GUY-SMITH: But in terms of forensics, I think it -- we're
11 probably better off than not.
12 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
13 Mr. Harvey.
14 MR. HARVEY: I share Mr. Emmerson's optimism, Your Honour.
15 JUDGE MOLOTO: Thank you so much.
16 Prosecution's pre-trial brief.
17 MR. ROGERS: Yes, Your Honour. In the light of the Appeals
18 Chamber's decision, the Prosecution intends to modify its pre-trial brief
19 to reflect the ruling of the Appeals Chamber and to address the issues
20 raised by it. I don't anticipate that the brief will be amended very
21 substantially, and we propose to file an amended brief by the
22 20th of June, as we discussed yesterday. As I say, it is to address the
23 Appeals Chamber's ruling.
24 JUDGE MOLOTO: May then the Chamber show that -- the record show
25 that the Prosecution is ordered to file its amended pre-trial brief by
1 the 20th of June, 2011. I don't think -- do you want to say anything,
2 Mr. Emmerson, on that point?
3 MR. EMMERSON: Not in relation to the Prosecution's pre-trial
5 JUDGE MOLOTO: Sure. We will get to the Defence's pre-trial
6 brief. And I don't think Mr. Guy-Smith or Mr. Harvey would like also to
7 comment on this? Thank you so much.
8 Then let's talk about the Defence brief. Is it possible to have
9 this by the 11th of July, Mr. Emmerson?
10 MR. EMMERSON: Certainly by the 11th. We, in fact, had offered
11 and suggested the 4th of July.
12 JUDGE MOLOTO: I am aware of that but I was also aware of the
13 fact that Mr. Guy-Smith had indicated yesterday that, as much as he could
14 make it by the 4th, he would prefer the 11th, and I thought it would be
15 well --
16 MR. EMMERSON: Can I indicate, just in a sentence, foreshadowing
17 issues that are going to follow. We will in the course of our pre-trial
18 brief endeavour to set out such challenges to the admissibility of the
19 evidence on which the Prosecution indicates that it proposes to rely in
20 its amended pre-trial brief as are capable of being identified at the
21 very outset; in other words, the admissibility objections will be
22 identified at the very least, if not fully argued, identified at least in
23 the course of the pre-trial brief.
24 JUDGE MOLOTO: Well, that's fine, Mr. Emmerson. I'm sitting here
25 trying to imagine how one challenges admissibility without having
1 evidence right here, but you go ahead and write what you have to write
2 and the Chamber will look at it.
3 Mr. Guy-Smith, 11th of July was fine by you?
4 MR. GUY-SMITH: Yes, July is fine by me, and with regard to the
5 issue of the admissibility evidence, I probably am going to engage in it
6 the old-fashioned way and deal with it when it arises.
7 JUDGE MOLOTO: Sure. You said July, and my specific question --
8 MR. GUY-SMITH: July 11th.
9 JUDGE MOLOTO: The 11th.
10 MR. GUY-SMITH: Yes, perfect.
11 JUDGE MOLOTO: Thank you. Thank you very much, Mr. Guy-Smith.
12 Mr. Harvey.
13 MR. HARVEY: Fine by me, of course, Your Honour. Thank you.
14 JUDGE MOLOTO: Fine by you. Thank you so much.
15 Alibi defence or special defence, I'm told that none of the
16 defence teams is proposing to put an alibi or a special defence.
17 MR. EMMERSON: I can confirm that, Your Honour, so far as
18 Mr. Haradinaj is concerned.
19 JUDGE MOLOTO: Mr. Guy-Smith.
20 MR. GUY-SMITH: It is certainly not anticipated at this time that
21 such a defence would be mounted.
22 JUDGE MOLOTO: Mr. Harvey.
23 MR. HARVEY: Your Honour, I think you may be aware from
24 yesterday's hearing record, I did indicate that the Prosecution will not
25 be taken by surprise by Mr. Brahimaj's position that he was for the
1 majority of the indictment period well away from Jabllanice, but he
2 doesn't say that he was never there. That's put in a nutshell.
3 JUDGE MOLOTO: Thank you very much. That's quite understandable.
4 Okay, 92 bis, 92 ter, 92 quater motions.
5 Mr. Rogers, we know that you filed -- you indicated that you
6 intend to call a number of witnesses pursuant to these rules. And I
7 understand that the Prosecution is considering proposing for admission
8 into evidence a large number of transcripts from the original Haradinaj
9 trial and associated exhibits pursuant to 89(F). I also understand that
10 the admission of a large part of these statements is not opposed by the
11 Defence. Can you confirm this?
12 MR. ROGERS: Your Honour, that's what we discussed yesterday. We
13 all recognise we're in a slightly different position in this case, that
14 many of the issues that we wish to litigate have been fully aired in the
15 last trial and there's no need for these witnesses to return for the same
16 issues to be aired. The Court can read the transcripts and look at the
17 associated exhibits and make its conclusion from there. But strictly
18 speaking, a number of those witnesses may not technically fall within
19 92 bis because they speak to the acts and conduct of the accused. So
20 it's a slightly different position. That's why we've looked at 89(F) as
21 perhaps a way of addressing it between us -- between the parties.
22 A vast majority of the witnesses that we've identified are down
23 as 92 bis witnesses. I think it's about 45 of the total number of
24 witnesses, leaving 10 or 11 as 92 ter or live. What we discussed
25 yesterday was the Defence identifying which of the witnesses on the
1 92 bis list it was prepared to admit, and that meaning their transcripts
2 and associated trial exhibits that were admitted during the course of the
3 trial would be admitted during the course of these proceedings. We've
4 identified which of those trial exhibits we wish to bring in. If the
5 Defence wish to identify any others from those witnesses, then we can
6 look at that and hopefully try to agree that those come in as well.
7 My learned friend Mr. Guy-Smith indicated yesterday that he
8 thought it would be possible for the Defence to agree the ones he
9 identified as non-contentious 92 bis witnesses by the recess. I was
10 going to respectfully suggest that that could be done in line with the
11 filing of the pre-trial briefs, because I know Mr. Emmerson if he is
12 intending to raise issues of admissibility would already have identified
13 the witnesses from the 92 bis list that he takes issue with plus, I
14 imagine, the parts of their testimony and/or exhibits that he also takes
15 issue with if there are aspects of their testimony that he doesn't like.
16 I would have thought that both my other learned friends could have done
17 the same thing and notify the Prosecution by the 11th of July which
18 witnesses from the 92 bis list it does -- they do not accept should be
19 dealt with in that way, and then we can make such appropriate motions for
20 them and a motion to admit the others, either pursuant by agreement or
21 by -- under 89(F) in the interest of justice in this particular case.
22 That was the way I was thinking that we could deal with the main body of
23 material in this case, leaving the remaining witnesses to be tendered
24 either 92 ter or live.
25 JUDGE MOLOTO: I'm just trying to understand what you mean by
1 89(F), in fact. Because I heard you indicate that the witnesses that are
2 92 bis currently are not necessarily all 92 bis because some of them do
3 refer to the acts and conduct of the accused. And would that -- those
4 category of witnesses not fall under 92 ter and could indeed be part of
5 your motion to say because they are dealing with conduct of the accused,
6 they should be 92 ter and they can come in and be cross-examined?
7 MR. ROGERS: Well, Your Honour, the reason we haven't done that
8 is because we don't anticipate anyone wants to cross-examine them --
9 MR. EMMERSON: Further --
10 MR. ROGERS: -- further than they have already been
11 cross-examined. So it's a way of trying to reach by agreement the
12 admission of a body of evidence to best assist the Court and to find a
13 rule that fits.
14 JUDGE MOLOTO: Okay, okay. Then I don't understand how -- maybe
15 it's my short understanding, how 92 -- 89(F) is better than 92 bis, but
16 do it the best way you want to do it and we'll look at it when it comes.
17 Mr. Emmerson, you want to make a comment?
18 MR. EMMERSON: Simply this, so far as the modalities of agreeing
19 the admission of testimony from the previous trial is concerned, I think
20 the parties can discuss that and come up with a joint proposal in respect
21 of those witnesses where there is clear agreement. Subject to one or two
22 observations, if I may. First of all, I think certainly so far as the
23 Defence are concerned, there is unanimity that we would invite the
24 Trial Chamber not to simply work from transcripts but to view the
25 recordings of the testimony of the witness given live.
1 JUDGE MOLOTO: Are you saying --
2 MR. EMMERSON: Insofar as --
3 JUDGE MOLOTO: In other words, you are inviting the Chamber to
4 read the transcript of the record of the previous --
5 MR. EMMERSON: No, all of this evidence that we are now referring
6 to is evidence which has been admitted in the original trial, most of it
7 through the giving of oral testimony, either in the form of
8 cross-examination following the admission of a 92 ter statement or
9 because the witness has given evidence live throughout. Now, what is
10 envisaged is that in order to save the re-calling of witnesses in respect
11 of whom the Defence have had a full opportunity to cross-examine the base
12 of the case as it then stood and there are no new issues that need to be
13 traversed, then an appropriate vehicle should be agreed between the
14 parties for putting before the Trial Chamber that witness's evidence as
15 it was placed before the original Trial Chamber.
16 One of the difficulties, and Your Honour will see it in the
17 course of analysing the evidence in due course, is that the Prosecution's
18 pre-trial brief as it stands is taken purely from witness statements
19 without reference to the qualifications, contradictions, and withdrawals
20 that were given in the course of cross-examination. And it will
21 obviously be very important for the Trial Chamber to be very much alive
22 to that in the way that one perhaps could understand the Prosecution
23 hasn't been. And for that purpose, the Defence, as I say, I think speak
24 with one voice that we would not consider it adequate for the
25 Trial Chamber to simply read through the transcripts of those witnesses'
1 evidence. It would be necessary for the Trial Chamber to have available,
2 as did the previous Trial Chamber, such statements as were admitted on
3 the record together with a video-tape of the witness's testimony in order
4 to be in a position to evaluate the witness and the way in which they've
5 given evidence and responded to cross-examination.
6 JUDGE MOLOTO: Okay. Then in that event, I think, Mr. Emmerson,
7 it stands to the parties then to put up whatever they want to put up
8 before the Chamber --
9 MR. EMMERSON: Yes. I don't know if there's any dissent from
10 that from the Prosecution's side.
11 MR. ROGERS: No, there's no dissent from that. If my learned
12 friends wish to indicate which of the witnesses they would like the Court
13 to view the videos of, then I -- there's no problem from our point of
14 view in that happening. We're very happy to accommodate, and likewise we
15 may also for some to be viewed too.
16 MR. EMMERSON: I think the answer is all witnesses in respect of
17 whom oral testimony was given at the original trial. It's impossible for
18 the re-Trial Chamber to properly evaluate the strength, weight,
19 relevance, demeanour of the witness without seeing them testify and
20 seeing how they respond to cross-examination.
21 JUDGE MOLOTO: And by oral testimony you included the 92 ter
23 MR. EMMERSON: Insofar as witnesses were cross-examined --
24 JUDGE MOLOTO: Sure, yeah -- a 92 ter would have been
1 MR. EMMERSON: Precisely so.
2 JUDGE MOLOTO: Okay. Thank you.
3 MR. EMMERSON: I mean it's plain that the re-Trial Chamber would
4 have available to it the 92 ter witness statement as the original
5 Trial Chamber did. But insofar as the Prosecution wants effectively this
6 Trial Chamber to look at the record of the previous trial, then it must
7 look at the record, not at excerpts from the record or simply the record
8 reduced into written form. So that was the first comment.
9 Secondly, as I think I presaged earlier on, there were some areas
10 of significant difference between the parties as to what should be placed
11 before the re-Trial Chamber. In one respect, there's a witness whom the
12 Defence consider the Prosecution ought to be required to call as a
13 condition of calling another witness in the case in order to ensure that
14 the case is properly and fairly presented. And in a number of instances,
15 there are witnesses that the Prosecution are proposing to call who,
16 notwithstanding and indeed in conformity with the Appeals Chamber's
17 decision, the Defence will submit fall outside the scope of what is
18 properly relevant on the re-trial in the light of the scope of the joint
19 criminal enterprise as it currently stands after the Appeals Chamber
21 In other words, there are still quite a lot of witnesses that the
22 Prosecution wishes to place before the re-Trial Chamber that the Defence
23 disputes the relevance of to the charges on the indictment. And it's in
24 respect of those witnesses, as I presaged a moment ago, that we will
25 identify the position in relation to them in our pre-trial brief. Again,
1 it will be no surprise to anybody because with most of them at least,
2 they were highlighted in the objections raised by way of illustration in
3 the Defence appeal brief which resulted in the present or most recent
4 Appeals Chamber's ruling. But as Your Honour will have seen, the ruling
5 by no means seeks to determine those issues, rather leaving them for the
6 re-Trial Chamber to determine on relevance grounds, and that is a task
7 that in due course will fall to the re-trial Bench.
8 So with those general caveats we are in agreement that an
9 appropriate vehicle would probably be 89(F) by way of agreement in
10 respect of those witnesses where there is agreement, and frankly, the
11 next stage in relation to those where there isn't agreement is for the
12 Trial Chamber to rule on their relevance. Once that ruling has been
13 given, the vehicle by which they are admitted I'm sure is capable of
14 being agreed. In other words, where the Trial Chamber has ruled that
15 notwithstanding Defence objections a particular witness is relevant, it
16 will then be for the Defence to determine whether they want that witness
17 called because we may wish to further cross-examine --
18 JUDGE MOLOTO: I would like you to be quite clear here,
19 Mr. Emmerson. This is a new one on me of -- about a relevant witness. I
20 can understand relevant testimony. Then I've got to hear the testimony
21 to see whether it's relevant or not relevant.
22 MR. EMMERSON: Well, you can -- yes --
23 JUDGE MOLOTO: But I can't pre-empt a witness from coming to
24 court on the basis that that witness is irrelevant.
25 MR. EMMERSON: Well, Your Honour is in a rather different
1 position, in fact, from a position that would pertain in an ordinary
2 trial because you do have the ability to judge precisely that because the
3 only testimony that the Prosecution contends to be relevant is that which
4 was elicited at the original trial. So you're perfectly entitled to
5 view, and indeed that would be the only proper way of determining
6 relevant, to view the testimony that the Prosecution elicited and the
7 Defence elicited from that witness at the original trial, because that's
8 all you're being asked to admit, and then to determine whether that is
10 JUDGE MOLOTO: Okay. I will not go into a debate on this one at
11 this point. I think --
12 MR. EMMERSON: The Prosecution are proposing to call the
13 witness --
14 JUDGE MOLOTO: Let's cross that river when we get to it.
15 MR. EMMERSON: Yes, but all I want to flag-up at this stage is
16 that were the Chamber to rule that, for example, witness X was in fact,
17 contrary to Defence submissions, relevant, we would nonetheless reserve
18 the right to require that witness's attendance if it were necessary in
19 due course to put further questions in cross-examination.
20 JUDGE MOLOTO: Certainly.
21 MR. EMMERSON: And then finally, as far as exhibits are
22 concerned, I'm confident that we will be able to provide the Prosecution
23 timeously -- I mean, how quickly I don't want to put a deadline on, but
24 quickly, with the agreed list of exhibits and the further exhibits from
25 the tendered witnesses who are agreed that the Defence wishes to add to
1 the Prosecution's list.
2 JUDGE MOLOTO: Sorry, that last part, Mr. Emmerson, let me just
3 read it. Okay.
4 Mr. Guy-Smith.
5 MR. GUY-SMITH: We speak with one voice.
6 JUDGE MOLOTO: Thank you.
7 Mr. Harvey.
8 MR. HARVEY: Amen.
9 JUDGE MOLOTO: Thank you. I'm not a priest, I'm sorry.
10 MR. HARVEY: Ditto.
11 JUDGE MOLOTO: Okay.
12 Mr. Rogers, is the Prosecution in a position to file its motions
13 on 92 ter, 92 bis, 92 quater, issues by the 27th of June?
14 MR. ROGERS: Well, Your Honour, I invited my learned friends to
15 indicate by the 11th of July when they filed their pre-trial briefs which
16 of the witnesses they can agree or not agree pursuant to our I think
17 collective understanding of how best to manage this case. It would be
18 premature for us to do the work to file things under 92 bis, quater, or
19 ter when we're busy trying to agree it by another way, and what I would
20 invite the Court is to allow us -- let me just consult with my
22 [Prosecution counsel confer]
23 MR. ROGERS: Your Honours, if we -- if we have to make 92 ter or
24 quater or the like motions, it will take us a while to put that together.
25 It's not how we have collectively been envisaging managing this. If we
1 have to do that, we think it will take us two weeks to prepare those
2 motions and all the supporting material that's required. I'm hoping
3 that's not necessary. Your Honour, depending upon the date that you set
4 for my learned friends to identify to us which witnesses on our list it's
5 going to agree that we can admit together, from then we would ask 14 days
6 to run.
7 JUDGE MOLOTO: Well, Mr. Emmerson said timeously. He didn't
8 say -- and he didn't give us a date.
9 MR. ROGERS: No, but he was referring to the exhibits not to the
10 witnesses. I've invited the Court to tie that time to the time for the
11 filing of their pre-trial brief, because it seems to me that must be when
12 they know which witnesses they take issue with on the 92 bis list. I
13 think Mr. Emmerson is in agreement with me that that is possible to do.
14 I don't know about my other learned friends.
15 MR. EMMERSON: Can I indicate, in practical terms -- it may be
16 that this just does need a little further explanation. In practical
17 terms, the only issue which is going to divide the parties is relevance.
18 And in so -- I mean, I say that -- I may be contradicted, there may be
19 other side issues, but the central question that will divide the parties
20 is whether the testimony of a particular witness is properly relevant to
21 the issue that this Bench has to try.
22 Insofar as the Defence concedes that a particular witness is
23 relevant, the vehicle for placing that witness's testimony before the
24 re-Trial Chamber is a matter which is capable of agreement between the
25 parties, and subject to there being agreement that the re-Trial Chamber
1 should view the video and not simply read the transcript, then there is
2 unlikely to be any disagreement as regards those witnesses whose
3 relevance is a matter of common ground.
4 But insofar as there are witnesses where the Defence dispute
5 relevance, there is going to need to be a ruling. And we have already
6 indicated in our appeal brief and will indicate with comprehensive
7 clarity in our pre-trial brief who those witnesses are, that is to say
8 which of the witnesses that the Prosecution would currently wish the
9 Trial Chamber to admit the testimony of from the previous trial that the
10 Defence opposes because we say it is not relevant to the issues this
11 re-Trial Chamber now has to try.
12 Once that is clear -- and frankly, it is clear already because
13 the Prosecution knows exactly who we're talking about because we
14 identified them in our appeal brief so they can get on with their work
15 already, but we will formally put our position again on the record in the
16 pre-trial brief, which is why I foreshadowed that when I was referring to
17 the pre-trial brief. And from that point onwards, it will be necessary
18 for the Prosecution to persuade the Trial Chamber that the material ought
19 to be admitted and the form in which it ought to be admitted. And I'm
20 simply saying, as I said earlier on, we reserve the right to seek to
21 cross-examine those witnesses and we make no concessions, and the
22 Prosecution should not expect that we will, on the manner in which the
23 form in which or the rubric under the rules through which their evidence
24 may come to be admitted. We maintain a solid objection in respect of
25 those witnesses.
1 JUDGE MOLOTO: And on the assumption it's ditto, amen, can I say
2 now I understand you better. I would still want to see if I can't get
3 all this within the date of the 27th of June. You've just said,
4 Mr. Emmerson, that the Prosecution is aware of who are those witnesses
5 that you object to. Is it not possible therefore - now purely from a
6 practical point of view - for the parties to agree the 92 bis witnesses
7 that they agree on who are -- you've -- all parties feel are relevant and
8 using 89(F) file those and that's over, there's no need for a 92 bis
9 motion about them any longer. Then the Prosecutor --
10 MR. EMMERSON: Yes.
11 JUDGE MOLOTO: -- file a motion with respect to those witnesses
12 that relevance is challenged.
13 MR. EMMERSON: Yes.
14 JUDGE MOLOTO: And let the Chamber decide that.
15 MR. EMMERSON: So far as --
16 JUDGE MOLOTO: And let -- I would like to be able to -- I'm
17 trying to find out whether that agreement can't be reached much earlier
18 than the 27th of June to enable the Prosecution to have the two weeks
19 they need to mount a motion with respect to those that the Defence
20 challenges the relevance of.
21 MR. EMMERSON: Can I respond to that? First of all, as I think
22 Your Honour is aware, we would not stand in the way of any measure which
23 would speed these proceedings up. So although this is a change of
24 timetable that Your Honour is proposing from the one that naturally
25 follows from the timetables so far suggested, I see no reason in
1 principle. And on this I may not -- it may be a situation in which the
2 Defence does not speak with one voice, but on behalf of Mr. Haradinaj at
3 least, I can say we would certainly be in a position to advance the
4 timetable in that way. The Prosecution meanwhile can be getting on with
5 drafting their applications in respect of those witnesses the relevance
6 of which they are very well aware that the Defence dispute and they can
7 use our appeal brief as their guide for that.
8 In the meantime, before the 27th, we would be in a position to
9 indicate so far as the Defence are concerned which of those witnesses
10 whose testimony the Prosecution does propose to adduce there is not going
11 to be any dispute about. Your Honour, in short, anything which shortens
12 the timetable in that way we are more than prepared to accommodate.
13 JUDGE MOLOTO: Mr. Guy-Smith.
14 MR. GUY-SMITH: As I indicated earlier, it was not my intention
15 to take the same method in the pre-trial brief for the Balaj Defence as
16 was foreshadowed by Mr. Emmerson. I believe that with regard to some of
17 the witnesses that can be agreed, we may be able to meet the 27th date.
18 I'm not confident that we will be able to do that with all of them, but I
19 think we can reach --
20 JUDGE MOLOTO: Let me be clear you understand the request from
21 the Bench.
22 MR. GUY-SMITH: Sure.
23 JUDGE MOLOTO: The request is not to meet the 27th June date by
24 way of agreement. It is to reach agreement early enough to enable the
25 Prosecution to make the 27th June date with its motion on the witnesses
1 that are disagreed upon.
2 MR. GUY-SMITH: I think --
3 JUDGE MOLOTO: If I may correct my English there. On the
4 witnesses about whom there is disagreement.
5 MR. GUY-SMITH: I think that that could possibly constitute a
6 problem because -- and I -- having just clearly understood what
7 Your Honour has said and knowing the way that we have worked before and I
8 think we have worked efficiently before inter-party, that is a very short
9 period of time, I think, to deal with all of the issues, although some of
10 these witnesses have already been identified and the Prosecution has some
11 guidance --
12 JUDGE MOLOTO: This is what I don't understand.
13 MR. GUY-SMITH: But I for the moment --
14 JUDGE MOLOTO: When you say it takes long because they have
15 already been identified.
16 MR. GUY-SMITH: That's some of them. There are a series of other
17 witnesses that don't fall into that category. And in the absence of an
18 understanding with regard to when we are going to be receiving disclosure
19 for those witnesses that we have heretofore not received disclosure and
20 to the extent that those witnesses' testimony will impact upon some of
21 these pre-existing witnesses, I think I would be remiss in making a
22 commitment in terms of definiteness with regard to what I can agree to
23 because I don't have the entire picture in hand. If I had all of the
24 disclosure, I would be much more sanguine to be able to say to the Court
25 that we would be in a position to give a more robust and quicker
2 JUDGE MOLOTO: Okay. Thank you, Mr. Guy-Smith.
3 Mr. Emmerson.
4 MR. EMMERSON: I just noticed, working backwards, that would
5 require agreement between the parties or at least an indication of
6 agreement between the parties tomorrow -- or Friday at the latest, I
8 JUDGE MOLOTO: Tomorrow is Friday.
9 MR. EMMERSON: I'm sorry, yes, Your Honour's quite right. Yes.
10 JUDGE MOLOTO: Okay --
11 MR. GUY-SMITH: Then I think --
12 JUDGE MOLOTO: Let's hold it there.
13 Let's hear Mr. Harvey and then I'll ask a question.
14 Yes, Mr. Harvey.
15 MR. HARVEY: Your Honour, I'm in the same situation as my friends
16 for the Defence here. My client's position is he wants to move this
17 re-trial forward as fast as possible and wants me to do --
18 JUDGE MOLOTO: We [overlapping speakers] --
19 MR. HARVEY: I appreciate that he wants me to do nothing to slow
20 down that process. We will work and hard and fast as we can but there
21 are certain things which simply cannot be accomplished by tomorrow, I
23 JUDGE MOLOTO: Okay. I see your client is nodding in agreement
24 with you at back there.
25 Okay. Then my question is, I'm throwing myself into the hands of
1 the parties, give me a suggested date.
2 You gave a suggested date earlier, Mr. Rogers, I can't remember
4 MR. ROGERS: Your Honour, I did only because that was the
5 pre-trial brief date of the 11th of July. Your Honour, the Prosecution
6 awaits the identification of the witness. As soon as we have it, we do
7 our 14 days and move it on. I'm confident that my learned friends, and
8 certainly Mr. Emmerson appears to be in a position to move forward, know
9 who are the contested witnesses. They have all been in a trial that I
10 wasn't involved in. They should know of the 92 bis witnesses which ones
11 they take issue with and they can identify that very quickly, I would
12 have thought. It's a matter for Your Honour. As long as I have 14 days
13 from then, we can get on with it. And I would like to say we have done a
14 fair amount of the work already. It's not that we have been sitting idly
15 by, it's just that we need to finish it.
16 JUDGE MOLOTO: Sorry. Now when you talking about "as long as I
17 can have 14 days from then." This date of the 11th of July, what are you
18 asking for? For them to submit to you what they object to?
19 MR. ROGERS: Yes. I only --
20 JUDGE MOLOTO: And you need 14 days after that?
21 MR. ROGERS: Thereafter, yes. If Your Honour brings the date of
22 the 11th forward, I just need 14 days from then, So it doesn't matter to
23 me when it is. The only reason I suggested that was because that was the
24 date for the pre-trial brief and it had some logical consistency that all
25 of that came together with the pre-trial brief identifying the
1 admissibility issues together with the witnesses that they took issue
2 with. But if Your Honour brings that forward, I have no problem with
4 JUDGE MOLOTO: Is that logical consistency?
5 MR. EMMERSON: Yes, it makes -- it's logically internally
6 consistent. There are really two stages to this. The first is for the
7 Prosecution to be told which witnesses are agreed and which are contested
8 on relevance grounds. We can do that within seven days of today. The
9 Prosecution would thereafter request 14 days to file motions in respect
10 of those who are not agreed. And the second stage is the 11th, which
11 would be the date from which we would outline the basis for our
12 objection, but the Prosecution don't need to know that in detail,
13 although they already do know it because it's outlined in the appeal
14 brief, but they don't need formal notification of it because all they
15 need to know at the moment is who do they not need to make an application
16 for. And we can give that indication for certain within seven days. So
17 that will bring the Prosecution's timetable forward, if we say seven days
18 from today is the 17th, to the 5th of August, which would be the day
19 after the filing of their -- I'm sorry, the 5th of July -- no it wouldn't
20 be the 5th of July. I turned over two pages. It would be the 1st, I
21 think, is that right? The 1st of July, which would be the Friday before
22 they're due to -- am I right? Do we have a 4th of July dead-line for the
23 Prosecution? No. Very well. So the 1st of July, that would give them
24 until the 1st of July to file the motions that Your Honour has in mind,
25 so that's a few days longer than Your Honour originally envisaged.
1 JUDGE MOLOTO: So the one-liner answer is you can give this
2 answer within seven days?
3 MR. EMMERSON: Certainly.
4 JUDGE MOLOTO: Can the Balaj Defence be able to do that in
5 seven days?
6 MR. GUY-SMITH: We'll do our best.
7 JUDGE MOLOTO: No, no, no. Is it possible?
8 MR. GUY-SMITH: It's -- well, anything's possible, which is why
9 I'm saying we'll do our best, Your Honour. I mean, I understand -- I
10 understand what the Court wants, and I appreciate --
11 JUDGE MOLOTO: The Court is prepared to accommodate you if you
12 are not able to do it.
13 MR. GUY-SMITH: Once again, I keep on -- and I know I'm kind of
14 beating the same horse that I've always beaten, which is if I have the
15 entirety of the disclosure so I know the entire case that I'm facing,
16 then I'm in a position to deal with the entire case. But in the absence
17 of that, I'm in a position where, as logical as this may seem in the
18 abstract, I feel as if I'm putting the cart before the horse because
19 there's information that I do not have. There is disclosure that I do
20 not have available to me. If I have that disclosure available, for
21 example, if the disclosure which we have discussed on a number of
22 occasions, the subject of protective measures, was made available to me
23 tomorrow, then I would be in a position to meet this particular
25 JUDGE MOLOTO: Okay. The short answer is you're not able to meet
1 that dead-line.
2 MR. EMMERSON: Can I make a practical suggestion. I know I've
3 been jumping up and down on my feet. What would normally happen in a
4 situation like this if the parties are not in a position to agree, they
5 simply object, which may result in overbroad objections. May I suggest
6 that the Defence give within whatever time-frame the Trial Chamber sets
7 an indication of its understanding of its present position, but if
8 obviously that were to be modified as a result of disclosure, then any
9 formal consent would not have been provided for the evidence to be
10 admitted and the matter can be reconsidered in the light of any
12 JUDGE MOLOTO: That's what I thought. Thank you.
13 I see, Mr. Guy-Smith, you are trying to stand up.
14 MR. GUY-SMITH: You made a comment with regard to what
15 Mr. Emmerson said and I was waiting for that to come up. I thought I
16 heard you say "it's all right," but I'm not sure that's what I did hear
17 you say or not.
18 JUDGE MOLOTO: It doesn't appear on the screen but I think that's
19 what I said, something to that effect.
20 MR. GUY-SMITH: To that effect. With that in mind, then I'm in a
21 different position.
22 JUDGE MOLOTO: Okay. Thank you. Then I understand you.
23 Mr. Harvey, you do not want to delay the trial of your client.
24 MR. HARVEY: You got that right. Now, I think we can go along
25 to -- with what Mr. Emmerson has just suggested. I think in reality as
1 far as my client's position is concerned, the bulk of this is going to be
2 covered by what Mr. Emmerson has already said was in his appeal brief and
3 will be part of the position he takes. I don't think we are likely to be
4 having any very different position from that. If that's helpful.
5 JUDGE MOLOTO: Thank you so much. Can I summarise the situation
6 by saying that within seven days from today, the Defence, to the extent
7 possible, will give to the Prosecution the list of names of those 92 bis
8 witnesses whose relevance they object to to enable the Prosecution to
9 file its motion with respect to such witnesses by no later than the
10 27th of June, with the caveat that as disclosure takes place and there
11 are further witnesses to whom or against whom the Defence objects, of
12 course the Defence will always have the right to object.
13 Is that okay?
14 MR. EMMERSON: Your Honour, yes.
15 JUDGE MOLOTO: That caveat is trying to cover you, Mr. Guy-Smith,
16 and I'm trying to look at you to see whether I can get a nod from you.
17 MR. GUY-SMITH: Thank you, Your Honour.
18 JUDGE MOLOTO: Thank you.
19 Is that okay with you, Mr. Rogers?
20 MR. ROGERS: Well, Your Honour, my calculation is if they have a
21 week from today, that's the 16th of June, which takes us to the
22 30th of June, which was the 30 days -- the 14 days that I asked for.
23 JUDGE MOLOTO: 30th June, I can give you to the 30th of June.
24 MR. ROGERS: Your Honour, we'll do obviously whatever the Court
25 asks us to do. It's unfortunate that we may not be getting the final
1 position which requires us to waste time making applications which are
2 actually unnecessary because the Defence collectively is not in a
3 position to indicate which witnesses it thinks it can and cannot agree.
4 Mr. Emmerson has made very clear that he can do that. I'm at a loss to
5 understand why my learned friends for the other two accused cannot also
6 do that, but they say they can't, and unless Your Honour makes a firm
7 order and we -- then we have to live with what comes in seven days' time
8 and take it from there. But we'll do whatever Your Honour --
9 JUDGE MOLOTO: No, you made a comment which I feel I've got to
10 respond to. "It's unfortunate that we may not be getting the final
11 decision which requires us to waste time making applications which are
12 actually unnecessary ..."
13 Now, I don't want unnecessary applications. Do you want to go
14 back to your original suggestion that we give you up to the 11th of July
15 to sort yourselves out and would you then tell us that by the 11th of
16 July you would have a final decision amongst yourselves as to who is
17 objected against and who is not?
18 MR. ROGERS: Your Honour, I'm in my learned friends' hands. The
19 concerns are being expressed by them as to when they feel they can tell
20 us who they do and do not object to --
21 JUDGE MOLOTO: Yeah, but Mr. Rogers, I'm sorry, I must cut you
22 short here. You can't have your cake and eat it. You made the
23 suggestion which I've tried not to agree with and I'm trying to go back
24 to your own suggestion. Now, you cannot now say you are in your learned
25 friends' hands. If I give you up to the 11th and then give you another
1 two weeks after that, I want a firm commitment from you that you are
2 going to live by those dead-lines.
3 MR. ROGERS: Your Honour, forgive me. I suggested the 11th of
4 July to assist my learned friends in identifying the witnesses that they
5 want to object to.
6 JUDGE MOLOTO: Yeah.
7 MR. ROGERS: I have been able to live with any date that the
8 Court sets for me to make applications. I've asked for 14 days for me
9 when they tell me who they object to. That's how all of this started and
10 now I feel that the Prosecution comes and looks as though it's trying to
11 move goal-posts.
12 JUDGE MOLOTO: No, no, no, I'm not suggesting you've been moving
13 goal-posts. What I'm saying -- look --
14 MR. ROGERS: If you give me until the 11th of July that --
15 JUDGE MOLOTO: Mr. Emmerson says he can give you in seven days
16 the witnesses he objects to. Mr. Guy-Smith says he can give you in
17 seven days the witnesses he objects to once he has got full disclosure.
18 Now, there is no full disclosure right now. Okay. There isn't going to
19 be full disclosure in the next seven days, so we've got to live with the
20 fact that Mr. Guy-Smith is not going to be able to give you his final
21 word on this issue until he has received full disclosure, whenever that
22 takes place. Mr. Harvey is very much in line with Mr. Emmerson's
24 MR. ROGERS: Yes, neither of whom seem to have difficulties with
25 the disclosure problem --
1 MR. GUY-SMITH: Sure. Well --
2 MR. ROGERS: Because it seems to us, respectfully, that the
3 disclosure that will be coming does not touch any of these particular
4 witnesses under 92 bis. But in any event, I will abide with such orders
5 as Your Honour considers appropriate for the effective management of this
7 JUDGE MOLOTO: Okay.
8 Mr. Guy-Smith.
9 MR. GUY-SMITH: I appreciate that Mr. Rogers may wish to try the
10 case for me but I respectfully decline. And whether or not he
11 understands what my concerns are or not is more the pity for him, not for
12 my client. However, we have spent quite a bit of time together. I have
13 been in this Tribunal for quite a bit of time, and I believe that I can
14 stand firm with the proposition that I do not waste time, I do not intend
15 on wasting time, and I look for clarity and quick solutions to many
16 things whenever they can be achieved. An easy way of settling this whole
17 matter would be if Mr. Rogers would give us disclosure now, which is
18 something I have repeatedly suggested to him and he repeatedly declines
19 because he believes that he is in a position to stand by the Court's
20 previous decision and he does not choose to give us disclosure prior to
21 that time. I can't do much about that.
22 I'm trying to figure out a way of effectively and efficiently
23 dealing with this case. The way that one effectively and efficiently
24 deals with a case is they are given the entirety of the information that
25 is in the possession of their opponent here, the Prosecution.
1 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. I'm now going to make a
3 Today is the 9th. By the 16th of June, the Defence must file --
4 or by no later than that date, the Defence must file and give to the
5 Prosecution the list of witnesses that they object to to enable the
6 Prosecution to file its motion pursuant to Rules 92 bis, 92 ter, and
7 92 quater by no later than the 27th of June, this year. That's the
8 ruling and that disposes of that item.
9 Now, the next item I would like us to talk about is the sitting
10 schedule. The Chamber has indicated earlier that it won't be able to sit
11 on a five-day-per-week schedule as two of the members of the Bench
12 appointed for the pre-trial are also sitting in another case. The
13 Chamber has informed the parties of the issue via the Chamber's
14 Legal Officer and had inquired about the parties' preferences regarding
15 the available scheduling options. The Chamber has also sought that the
16 use of other sections of the Tribunal, the Registry in particular.
17 The Prosecution has indicated it would prefer a two-week block
18 sitting on a five-day-per-week basis. Counsel for Balaj and Brahimaj
19 have indicated that they will need to raise the matter further with OLAD.
20 Counsel for Haradinaj has indicated that he would prefer block sitting on
21 a one-week basis.
22 MR. EMMERSON: One or two.
23 JUDGE MOLOTO: One or two. Thanks. Thank you.
24 Is there anything further from the parties? Have you heard from
25 OLAD, Mr. Guy-Smith?
1 MR. GUY-SMITH: I have not heard from OLAD. I have no idea what
2 their position is. If I was dealing with the matter of trial efficiency
3 and only that matter, I would suggest two weeks.
4 JUDGE MOLOTO: Thank you.
5 MR. GUY-SMITH: If I'm dealing with the ability to defend my
6 client because I will be able to resource a team, I have no idea because
7 I don't know what OLAD's position is with regard to that issue. I'm
8 trying to work that out. Hopefully I will be able to. If I cannot, I
9 will make the appropriate report to the Chamber and I will take
10 appropriate measures.
11 JUDGE MOLOTO: Thank you.
12 Mr. Harvey.
13 MR. HARVEY: I second what Mr. Guy-Smith has said. I think
14 Your Honour is also aware that I have an additional complication, that I
15 am lead counsel on the stand-by team in the Karadzic case which sits in
16 the mornings. Now, it we --
17 JUDGE MOLOTO: Welcome to the party. We --
18 MR. HARVEY: And I know you've got your problems. I know all of
19 the Judges involved here have got serious conflict problems, and I do
20 understand this.
21 JUDGE MOLOTO: We will take that into account.
22 MR. HARVEY: I would be most grateful if you would. Thank you.
23 JUDGE MOLOTO: Mr. Rogers, you also said you wanted a two-week
24 block. Okay. Fine.
25 It looks like -- let me just give an indication before we get to
1 that point just to close this point, that it looks like we will go for
2 the two-week block then.
3 Is there any other business that the parties would like to raise
4 at this point? Mr. Rogers.
5 MR. ROGERS: Your Honour, it's the elephant in the room. I was
6 hoping that Your Honour might indicate when the hearing date may be --
7 JUDGE MOLOTO: Okay.
8 MR. ROGERS: Whether it's going to be anticipated before the
9 recess or after the recess.
10 JUDGE MOLOTO: We can raise that, Mr. Rogers.
11 MR. ROGERS: Thank you.
12 JUDGE MOLOTO: And I will -- please do remind me to come back to
13 this item at the end, then.
14 With respect to the start of the trial, if there are no further
15 matters that need to be resolved at this stage, the Trial Chamber would
16 propose to hold a Pre-Trial Conference on Wednesday, the 17th of August,
17 and to hear opening statements on the 18th of August. The presentation
18 of evidence can then begin immediately thereafter, and the Chamber would
19 be sitting on the 17th, 18th, and 19th of August for that entire week and
20 also -- and for the entire week starting the 22nd of August, following
21 which it will break for two weeks to enable the Stanisic and the
22 Zupljanin trial to sit for two full weeks.
23 So briefly speaking, we would sit 17th, 18th, 19th, and then we
24 would sit the week of the 22nd of August. And from then on would start
25 sitting on the 12th of September, the week of the 12th of September, and
1 the week of the 19th of September, 10th of October, on and on and on.
3 How does that sound?
4 MR. EMMERSON: Two comments, if I may. First of all, we would on
5 behalf of Mr. Haradinaj strongly prefer at least the formal opening of
6 the trial before the recess, even if shortly before the recess. There
7 are a number of reasons for that, one of them of course is the simple
8 reason that we have clients who have been in pre-trial custody, and
9 certainly in my client's case following a complete acquittal, for a year,
10 and the sooner the trial starts the better.
11 Another is that the timetable for disclosure in respect of
12 protected witnesses, and one in particular, back-dates from the trial
13 date. And we're obviously extremely anxious to be in a position to
14 investigate -- I don't want to -- I don't want to depart from the
15 formality of the proceedings, but the reality is that both parties know
16 this is a two-witness trial. And one of those -- I mean there are two
17 central --
18 JUDGE MOLOTO: Water under the bridge, Mr. --
19 MR. EMMERSON: No, no, no, it isn't. I mean in the sense that we
20 both know, both sides of the courtroom know that there are two key
21 witnesses in this case and one of them we are simply not in a position to
22 investigate and that is the one under the pseudonym 81. And the sooner
23 we are in a position to start that investigation, the sooner we are going
24 to be in a position to know how long the investigation is going to take
25 and what material we may need to place before the Trial Chamber.
1 If the trial date start goes back until the rear part of August,
2 that means in practical terms we're not going to get disclosure until the
3 second half of next month, just as the Court is moving into recess time,
4 which means that the recess period, obviously people have planned the
5 recess period in advance because nobody understood or expected the trial
6 to be in the position it is time-wise now, would be the period during
7 which one would expect operative investigations to take place. So unless
8 the Prosecution is in the position -- and I understand Mr. Rogers is
9 entitled to stand on his rights within the rulings as they are, but
10 unless the Prosecution is in a position to waive by way of truncating the
11 time-frame for disclosure, as Mr. Guy-Smith suggested a moment ago, and
12 to give disclosure sooner, then the effect of ordering the start date of
13 the trial to go back into the second half of August is in effect to
14 undermine the period for investigation the Defence have available in
15 respect of that witness. And so we would strongly urge the Trial Chamber
16 to consider for at least the formal opening of the trial in the week
17 before the July recess. That's the first thing.
18 The second thing is very much a personal concern, and that -- all
19 parties have been discussing what the trial schedule was going to look
20 like, in other words, whether it was going to be one week on/one week
21 off, two weeks on/two weeks off, or part week and part week, and none of
22 us had any idea of the start date for the trial. But I have indicated in
23 the past to the Registry that I have difficulties with two dates in
24 September, both of which I have long pre-existing prior commitments in
25 the European Court of Human Rights in interstate litigation, which fall
1 now within the two-week slab that Your Honour has indicated that this
2 trial will be sitting. I am simply not in a position to change those
3 commitments. They existed long before this re-trial was set and of
4 course at the time when no one anticipated that the Appeals Chamber's
5 would take six months to deliver their judgement in relation to this
6 matter. And that being the case, we're going to need, I'm afraid, to
7 find some process for navigating how we structure the time during
8 September because on the timetable that Your Honour has just set, and
9 anticipating what Mr. Rogers has indicated already about how long the
10 witnesses are likely to take and the order in which he wishes to call
11 them, the timetable that Your Honour has just said would put key
12 witnesses on days when I simply cannot be here.
13 And I think, if I may say so, we're all in a very difficult
14 situation managing this trial because of what has happened managerially
15 within this Tribunal over the last six months, and we need to find some
16 way of bringing matters forward so the trial can be conducted efficiently
17 and everybody can be represented appropriately by their counsel who have
18 represented them throughout.
19 JUDGE MOLOTO: Let me start with your last point. Your last
20 point, I think, is -- is irrelevant to the point at issue and it can
21 always be discussed and accommodated at the time it arises. You have
22 given notice of it now, at least to me, and the Chamber may be apprised
23 of it, that you might be indisposed for some time in September. And I
24 don't think that you're dealing here with unreasonable people.
25 MR. EMMERSON: Thank you.
1 JUDGE MOLOTO: People who would be prepared to accommodate that.
2 MR. EMMERSON: It's two days only.
3 JUDGE MOLOTO: Fair enough. That's fine. But that has nothing
4 to do, in my understanding, with whether we start before or after recess.
5 Let me address your first point now. Your first point, as I
6 understand it, is doing exactly what -- is undermining the decision of
7 this Chamber previously on the question of disclosure. The question of
8 disclosure -- a decision has been rendered where the Chamber said it will
9 be either 30 days before the trial or 45 days before the witness is
10 called or whichever or whatever way, 45 days before the trial -- I can't
11 remember, but there is that decision. And if we start before recess,
12 you're getting on top of that period three more weeks. And as you
13 rightly said, it is within Mr. Rogers to decide whether or not he wants
14 to truncate that time or he wants to stick by his rights. As things
15 stand now, the Chamber has granted him those rights and either -- either
16 the Chamber is going to undo that because of a motion that comes from
17 either of the parties or Mr. Rogers decides --
18 MR. EMMERSON: Can I --
19 JUDGE MOLOTO: -- as the person benefitting from that decision --
20 MR. EMMERSON: Can I add to Your Honour's point because in fact
21 that may seem to be position but it isn't. The order in fact -- and the
22 devil is in the detail. The order is that the disclosure should be given
23 45 days before the witness testifies or 30 days before the start of the
24 trial, whichever is the earlier. Now, if Your Honour were to fix the
25 start of the trial for, let us say, the week before the recess, then
1 back-dating it 30 days would take us to some time fairly soon, I think
2 the end of next week. But the Defence would have been entitled to the
3 disclosure 45 days as a minimum before the witness testifies, which would
4 take us pretty much to the end of the recess. In other words, had the
5 Prosecution given disclosure 30 days before trial due to start
6 immediately before the recess, they still wouldn't have been able to call
7 the witness until after the recess because the way that the order is
8 framed gives the Defence the benefit of the longest period. So in fact,
9 the point that Your Honour makes is apparent but not real.
10 JUDGE MOLOTO: I do not -- I do not have a copy of that decision
11 before me and I don't remember the details.
12 MR. EMMERSON: I can read Your Honour the operative paragraph.
13 JUDGE MOLOTO: Be that as it may -- or even before I respond, I
14 thought I saw Mr. Rogers wanting to answer.
15 MR. ROGERS: Your Honour, I was just going to say that even with
16 the -- if we were to start on the 18th of August, 45 days would take us,
17 I think, to the 4th of July, so my learned friends would obtain the
18 materials if we were anticipating on calling the witness very shortly
19 thereafter, to, you know, boxing and coxing a day or two, would be
20 receiving disclosure around about the 4th of July in any event. So I'm
21 not sure that the point my learned friend makes is good in the particular
22 circumstances of this case, because we end up in more or less the same
23 type of position. It's 45 days before the start -- 45 days before the
24 testimony of the witness and if we anticipated this witness would be one
25 of the first witnesses, then the disclosure would be coming a bit
2 But in any event, Your Honour, we support the position that
3 Your Honour has taken in relation to the days and for the -- and the
4 reasons why the decision was originally given. And we also considered
5 that the 17th -- that week of the 17th/18th of August gives us a good
6 date to work to to issue such summonses and subpoenas as we may require
7 to enable the start of the trial to be as clean as it possibly can be.
8 JUDGE MOLOTO: Thank you, Mr. Rogers.
9 MR. EMMERSON: Can I just respond to that last point, because if
10 Mr. Rogers is prepared to work on that hypothesis, the one he's just
11 advanced upon the record to Your Honour, the start date is the 18th July.
12 Working back 45 days he is required to give disclosure on the
13 4th of July. Can I ask him to confirm that that is exactly what the
14 Prosecution intends to do because that may resolve some of the problems.
15 If he's prepared to commit himself now to treating the start date of the
16 trial as the date effective for the 45 days and to give disclosure on the
17 4th of July, that would certainly assist in resolving some of these
18 difficulties. Can I ask him indicate his position.
19 JUDGE MOLOTO: Mr. Rogers.
20 MR. ROGERS: Swift off his feet as ever, Mr. Emmerson seeks to
21 seek an advantage. I understand quite properly why he does that.
22 Your Honour, as I've said before, we will give the disclosure in the
23 time-frame that has been permitted by the Court. If we were to call him
24 on the 22nd of August, then we would be giving disclosure six weeks
25 beforehand. He's not going to be coming on the 18th. If he's coming at
1 all, it could be in the following week. So my learned friends will
2 receive the information in -- with good time, with six weeks for them to
3 be able to investigate before the witness comes, which is all they're
4 entitled to. They may have had a shorter period of time if the witness
5 was coming on day one, but because of the particular recess I -- what I
6 was trying to say is they are really getting to what they're entitled to
7 anyway if Your Honour takes this start date. I don't think it makes a
8 lot of difference if it was immediately before in terms of this
9 additional time for investigation --
10 JUDGE MOLOTO: I think that detail you can sort out between
12 MR. EMMERSON: I didn't mean to take an unfair advantage.
13 Mr. Rogers made a submission to Your Honour that it made no difference to
14 disclosure because we were going to get it anyway on the 4th of July
15 because that's when he was going to be planning to call the witness.
16 Now, if the position is that that is not the case, then he shouldn't have
17 made that submission to Your Honour. If the position is that that is the
18 case, then he should say so.
19 MR. ROGERS: By way of illustration and sometimes I try to be
20 helpful and I wish I hadn't.
21 JUDGE MOLOTO: You wish you hadn't ? Okay --
22 MR. ROGERS: Sometimes.
23 JUDGE MOLOTO: Sometimes.
24 You are bound anyway by that decision, to give them either
25 45 days or 30 days before a certain event takes place, and you will do
1 so, Mr. Rogers.
2 MR. ROGERS: Of course.
3 JUDGE MOLOTO: Thank you so much.
4 In that event then -- yes, Mr. Harvey.
5 MR. HARVEY: Your Honour, at the risk of stating the obvious, I
6 know this is an order and a decision that has been made by this Court.
7 It was made at a different time in a different context and with different
8 contemplation of where we would all be by this date, in fact probably in
9 contemplation that this trial would have been finished by this date. At
10 the point that we find ourselves in now, it is in my view appropriate,
11 and I -- you may well wish and prefer this to be done on papers, but it
12 is in my view appropriate for the Court to entertain reconsideration of
13 that order in order to give the Defence what it truly needs in a timely
14 fashion because in a timely fashion is not something that happens just a
15 couple of days before the recess. If we could have that information now,
16 it would make everybody's lives so much simpler. And I, for the life of
17 me, cannot see -- I can see why a Prosecutor would sit on something
18 because I've got an order from the Court. Unless the Court tells me, I
19 don't have to do anything different from what I've got, and if all it is
20 going to take to shift this blockage that we all are facing at the moment
21 is for the Court to reconsider its order, then I would strongly urge and
22 invite the Court to do so. Whether you would wish me to do that orally
23 or in writing I think it is appropriate for reconsideration.
24 JUDGE MOLOTO: I don't know how -- I don't know how -- whether
25 you do want to put it on paper or you feel you have made your submissions
1 fully now, Mr. Harvey. Let me say, yes, it is true from what you say
2 that this decision was taken at a different time under different
3 circumstances. We didn't know where we would be. Maybe you are right.
4 I'm not quite sure how far right you are that we probably might have
5 finished this case by today.
6 However, you are not right when you say the Prosecutor is sitting
7 on the order simply because he's got an order. He's sitting on the order
8 simply because of the underlying reasons for that order, the underlying
9 reasons for that order was protective measures for certain witnesses and
10 those protective measures were given for specific reasons and those times
11 were put there for specific reasons. Okay. Those -- unless you say the
12 reasons for giving that order have changed, I do not see how you can ask
13 for a review of that decision.
14 MR. HARVEY: I'll take that --
15 JUDGE MOLOTO: It's just not an order for the sake of an order
16 that he's sitting on it. It's because of the underlying reasons for that
18 MR. HARVEY: I don't think I'm going to take it further here on
19 my feet, but I will think further about it --
20 JUDGE MOLOTO: Think further about it, Mr. Harvey. Thank you so
22 Thank you.
23 Mr. Guy-Smith, you wanted to say something?
24 MR. GUY-SMITH: Yes. I appreciate what the Court said. I'm
25 pleased to know that Mr. Rogers at times wishes to be helpful and
1 suggested July 4th as the date to be helpful to the Defence. With regard
2 to the discussion that was just had, one of the difficulties that exists,
3 Your Honour, is that with regard to the information that the Court looked
4 at in terms of making this order, we were uninformed. We requested that
5 the ex parte submissions that were made to the Court be made available to
6 the Defence so that we were in a position to respond intelligently and
7 meaningfully to those submissions. However, such is not the case.
8 So once again we remain -- and I have full confidence that based
9 upon the information the Court had at the time, in the absence of any
10 comment or submission made by the Defence, that the decision and the
11 order made is one that is reasoned and logical. However, we still remain
12 in the same position because one of the issues that -- and I think the
13 Court is appreciative of this. One of the issues that is really hotly
14 contested with regard to this particular case is the extent to which that
15 particular drum, the drum of intimidation or the drum of fear, is beaten.
16 But we're not in a position to intelligently respond to that because we
17 don't know what the submissions were, and I leave it at that.
18 I leave it at that because I'm not going to ask you to reconsider
19 an order for any reason at this point in time, and what I really was
20 hoping to do and what I've been attempting to do literally for months is
21 see whether or not Mr. Rogers would be in a position to see his way clear
22 to allowing for this matter to proceed efficiently with full disclosure
23 so that we can get to the point that we all want to get to, which is to
24 try this case and deal with the substantive issues that rightfully belong
25 before Your Honour and the Chamber that ultimately sits on the matter.
1 JUDGE MOLOTO: I'm grateful to you for saying you will not take
2 it any further than that because, in fact, if you were then given the
3 material that the Chamber is privy to when it made this decision, then
4 this discussion would not be there, disclosure would have been made
5 anyway and there are certain -- this delayed disclosure --
6 MR. GUY-SMITH: I'm ignorant of what you were supplied with,
7 Your Honour.
8 JUDGE MOLOTO: Of course you are ignorant of what I was supplied
9 with and that is precisely the issue. The issue is that we're being
10 requested to keep you ignorant until 45 days before start of trial.
11 That's the issue.
12 MR. GUY-SMITH: I hate being ignorant, I think you can appreciate
13 that. And the sooner that I'm educated, the happier I am.
14 JUDGE MOLOTO: It's no shame to be ignorant. It might be a shame
15 just not to understand things, but it is no shame to be ignorant. I
16 might not know what is behind this thing, it doesn't make -- it's no
18 MR. GUY-SMITH: I think we understand each other well.
19 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
20 In that event, is there any other submissions? In that event, we
21 will start on the 17th of August, as explained earlier.
22 May I now go back to the item of other business. Mr. Rogers.
23 MR. ROGERS: No, thank you.
24 JUDGE MOLOTO: Mr. Emmerson?
25 MR. EMMERSON: Can I simply thank Your Honour for the indication
1 that flexibility will be shown in respect of my difficulties in September
2 and can I formally place on the record the two dates concerned, they are
3 the 14th and the 22nd of September.
4 JUDGE MOLOTO: They are not even consecutive?
5 MR. EMMERSON: No, no, they are separate dates, separated by
6 nearly a week.
7 JUDGE MOLOTO: Thank you very much for that advanced notice,
8 Mr. Emmerson, and we'll look at it.
9 MR. EMMERSON: Thank you.
10 JUDGE MOLOTO: Please do remind us at the appropriate times
11 timeously. Don't rely on me remembering --
12 MR. EMMERSON: I shall and I will keep in close touch with
13 Mr. Rogers as well, and I'm sure he understands that he will need to
14 schedule his case around those dates. Thank you.
15 JUDGE MOLOTO: Thank you so much.
16 Anything, Mr. Guy-Smith?
17 MR. GUY-SMITH: Not at this time, Your Honour.
18 JUDGE MOLOTO: Thank you.
19 Mr. Harvey?
20 MR. HARVEY: No, thank you, Your Honour.
21 JUDGE MOLOTO: Thank you so much.
22 In that event, Mr. Haradinaj, is there anything you would like to
23 raise regarding your health or conditions of detention?
24 THE ACCUSED HARADINAJ: No, Your Honour. Everything is okay.
25 JUDGE MOLOTO: Thank you so much, Mr. Haradinaj.
1 Mr. Balaj?
2 THE ACCUSED BALAJ: [Interpretation] No, Your Honour. Everything
3 is fine. Thank you, Your Honour.
4 JUDGE MOLOTO: Mr. Brahimaj?
5 THE ACCUSED BRAHIMAJ: [Interpretation] No, Your Honour.
6 JUDGE MOLOTO: Thank you so much, Mr. Brahimaj.
7 I think, then, there being nothing else to do, I can safely say
8 we stand adjourned and we will see each other on the 17th of August.
9 Court adjourned.
10 --- Whereupon the Status Conference
11 adjourned at 4.20 p.m.