Tribunal Criminal Tribunal for the Former Yugoslavia

Page 137

 1                           Wednesday, 17 August 2011

 2                           [Pre-Trial Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.21 p.m.

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

 7     courtroom.

 8             Madam Registrar, would you please call the case.

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

10     number IT-04-84bis-PT, the Prosecutor versus Ramush Haradinaj,

11     Idriz Balaj, and Lahi Brahimaj.

12             JUDGE MOLOTO:  Thank you so much.

13             Can the accused understand and hear the proceedings in the

14     language they understand, Mr. Haradinaj?

15             THE ACCUSED HARADINAJ:  [Microphone not activated]

16             JUDGE MOLOTO:  Mr. Balaj.

17             THE ACCUSED BALAJ:  [Microphone not activated]

18             JUDGE MOLOTO:  And Mr. Brahimaj.

19             THE ACCUSED BRAHIMAJ: [Interpretation] Yes.

20             JUDGE MOLOTO:  Thank you so much.

21             Can we have the appearances, please, starting with the

22     Prosecution.

23             MR. ROGERS:  Yes, good afternoon, Your Honours.  Paul Rogers,

24     together with Ms. Daniela Kravetz, Mr. Aditya Menon, and our case manager

25     today Mr. Colin Nawrot.

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 1             JUDGE MOLOTO:  Thank you so much.

 2             And for the Defence, Mr. Emmerson.

 3             MR. EMMERSON:  Please, Your Honours, I appear on behalf of

 4     Mr. Haradinaj together with my learned friends Mr. Rod Dixon,

 5     Ms. Annie O'Reilly, and Mr. Andrew Strong.

 6             JUDGE MOLOTO:  Thank you so much.

 7             And Mr. Guy-Smith.

 8             MR. GUY-SMITH:  Good afternoon, Your Honours.  Gregor Guy-Smith,

 9     appearing with Colleen Rohan, Chad Mair, Gentian Zyberi on behalf of

10     Idriz Balaj.

11             JUDGE MOLOTO:  Thank you very much.

12             And for Mr. Brahimaj?

13             MR. HARVEY:  Good afternoon, Your Honours.  Richard Harvey,

14     together with me Mr. Paul Troop, there's Sophie Rigney who is our case

15     manager, Mr. Luke Boenisch who will be taking over from her as case

16     manager, and that's it.  Thank you.

17             JUDGE MOLOTO:  Thank you very much, Mr. Harvey.  I presume this

18     is the first time that we're sitting as a full Bench.  If we have before,

19     I don't think it makes any difference if I re-introduce the Judges with

20     me.  On my right I have got Judge Hall and on my left Judge Delvoie.  I

21     guess I am known already, having been with you for some time.

22             Just to remind the parties that by order of the President of the

23     21st of July 2010, this Trial Chamber was assigned to this case for a

24     re-trial.  Now today we are having a Pre-Trial Conference, and pursuant

25     to Rule 73 bis the Trial Chamber is required to convene a

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 1     Pre-Trial Conference prior to the commencement of the trial, and in the

 2     course of the Pre-Trial Conference, having heard the Prosecution, the

 3     Chamber may determine the number of witnesses the Prosecution may call,

 4     the time available to the Prosecution for presenting evidence, and

 5     further the Chamber may call upon the Prosecution to shorten the

 6     estimated length of the examination-in-chief for some witnesses and fix a

 7     number of crime sites or incidents in respect of which evidence may be

 8     presented by the Prosecution.

 9             Now, at the Status Conference on the 9th of June, 2011, we

10     confirmed that in accordance with Appeals Chamber decisions of the 31st

11     of May, 2011, the operative indictment in this case is the indictment

12     filed by the Prosecution on the 21st of January, 2011.  We have also

13     indicated that the Chamber will not invite the Prosecution to reduce the

14     indictment any further.

15             Are we agreed on that?  Mr. Rogers, Mr. Emmerson?

16             MR. ROGERS:  Yes, Your Honour.

17             JUDGE MOLOTO:  We are agreed?

18             MR. EMMERSON:  Yes.

19             JUDGE MOLOTO:  Indeed.  I presume also -- Mr. Harvey, I see you

20     nodding, and I will record the nod of Mr. Guy-Smith as well.

21             MR. GUY-SMITH:  Thank you.

22             JUDGE MOLOTO:  You're welcome.

23             Now, the next item I would like to deal with then is the list of

24     witnesses and estimated time for the presentation of the Prosecution

25     case.  On the 3rd of December, 2010, the Prosecution filed its pre-trial

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 1     brief pursuant to Rule 65 ter (E) together with a witness list and an

 2     exhibit list.  The Prosecution indicated that it intends to call a total

 3     of 57 witnesses and estimated that the total time for its case in chief

 4     would be 36.5 hours.  However, on the 20th of June, 2011, in accordance

 5     with the Chamber's order made at the Status Conference on the 9th of

 6     June, 2011, the Prosecution filed a revised pre-trial brief.  It

 7     indicated that it no longer intended to call one witness and I'm not -- I

 8     might not be able to pronounce the name of this witness,

 9     Ms. Stephanie Schwandner-Sievers so that the total number of witnesses on

10     the Prosecution's list is now 56.  On the 27th of June, the Prosecution

11     filed a motion pursuant to Rule 89(F) of the Rules seeking the admission

12     of the evidence of eight witnesses, a motion pursuant to Rule 92 bis with

13     respect to 14 witnesses, and a motion pursuant to Rule 92 ter with

14     respect to eight witnesses.  And on the same day the parties filed a

15     joint motion for admission of agreed evidence which we will address later

16     in this hearing.

17             On the 22nd of July, the Chamber issued its decision on the

18     Prosecution motion pursuant to Rule 92 bis, requiring that two of the

19     proposed witnesses give evidence viva voce to appear for

20     cross-examination and granting in principle the motion with respect to

21     the remaining witnesses.  The Chamber will issue decisions on the

22     Prosecution's motions pursuant to Rule 89(F) and Rule 92 ter in due

23     course.  We can indicate today that the decision pursuant to Rule 92 ter

24     should be expected in the course of this week.

25             Mr. Rogers, are you in a position to provide revised estimates

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 1     for the case in chief for the Prosecution in the light of the above

 2     developments?

 3             MR. ROGERS:  Your Honours, I think we can reduce the amount of

 4     time we will need with Mr. Stijovic and Mr. Zyrapi.  I don't think we

 5     will require as much as we have indicated.  I think we may have indicated

 6     as much already to the Chamber.  So we can reduce that down.  But apart

 7     from that, I don't think we can trim anything more off of the case as we

 8     have already indicated.  It's, if I may say, with respect, Your Honours,

 9     it is already a fairly trim case.  We've done everything we can to give

10     reasonable and modest time estimates, understanding how some of the

11     witnesses may develop.  It may be a little more time will be required

12     with some of them and less with others.  And that may be the give and

13     take in the court proceedings, but I really have done my best to make it

14     as short as we can.  Apart from those two, I don't see any real reduction

15     in the Prosecution time that I can offer to the court.

16             JUDGE MOLOTO:  Thank you, Mr. Rogers.

17             Mr. Emmerson, any comments from the Defence?

18             MR. EMMERSON:  Your Honours, save this that we have been in

19     discussions, that's to say the Defence and the Prosecution, during the

20     course of this morning just before Your Honours came into court, and it

21     is likely, I will say no more at this stage, that some of the witnesses

22     in relation to whom it is currently anticipated that they will attend to

23     give evidence live will no longer be required to give evidence live.  Can

24     I leave it in that way; in other words, the witness list may in fact

25     shorten, that's shortened by agreement.

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 1             JUDGE MOLOTO:  The Chamber is very grateful to you, Mr. Emmerson

 2     and while you're standing, may I just mention something that I was remiss

 3     of, congratulations on your appointment as the Rapporteur -- United

 4     Nations Rapporteur on Terrorism.  My -- have I got it partly correct?

 5             MR. EMMERSON:  Yes, thank you very much.

 6             JUDGE MOLOTO:  Thank you so much.  I hope your obligations with

 7     them will not sort of interfere with your job with here.

 8             MR. EMMERSON:  No, and vice versa.

 9             JUDGE MOLOTO:  Thank you so much.  And vice versa indeed.

10             Mr. Guy-Smith.

11             MR. GUY-SMITH:  That was an accurate statement as to where we

12     stand right now.

13             JUDGE MOLOTO:  Mr. Harvey.

14             MR. HARVEY:  It was indeed.

15             JUDGE MOLOTO:  Thank you so much.

16             Then that completes the item on the witness list.

17             The next item is disclosure.  Now, at the Status Conference on

18     the 9th of June, 2011, you also confirmed that there were no outstanding

19     issues regarding disclosure pursuant to Rule 66(A) and (B) and 68 at that

20     time.  Is there anything that the parties wish to raise in relation to

21     disclosure?  Mr. Rogers.

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5             JUDGE MOLOTO:  Thank you, Mr. Rogers.  We will hear you at that

 6     time.

 7             MR. ROGERS:  The only other matter, Your Honour, of course, is

 8     the material which remains to be disclosed to the Defence pursuant to the

 9     delayed disclosure orders of the Chamber, but apart from that, as far

10     as -- that's all.

11             JUDGE MOLOTO:  Thank you so much.

12             Any comments from the Defence?

13             Mr. Emmerson.

14             MR. EMMERSON:  Your Honour, that's an accurate statement of the

15     position as it stands at the moment.  It is likely, though, consistent

16     with the Prosecution's duty of continuing review, that there will be

17     further requests for disclosure, in particular in relation to Witness 81.

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

19             Mr. Guy-Smith.

20             MR. GUY-SMITH:  Yes, with regard to Witness 81, as I understand

21     the present state of affairs the Prosecution has launched another ex

22     parte request.  There has not been --

23             JUDGE MOLOTO:  How do you know of this ex parte request?

24             MR. GUY-SMITH:  Because Mr. Rogers had just so indicated.

25             JUDGE MOLOTO:  Okay.

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 1             MR. GUY-SMITH:  There has been further delayed disclosure with

 2     regard to this witness.  It's my understanding that the disclosure

 3     obligations as regard Witness 81 should have been completed by this time,

 4     and I don't know whether there's been an order issued with regard to any

 5     subsequent delayed disclosure requests by Mr. Rogers or not.  It's my

 6     position that whatever disclosures exist for Mr. -- from Mr. Rogers with

 7     regard to Witness 81 should be in our hands at this time pursuant to

 8     previous rulings by this Court.

 9             JUDGE MOLOTO:  Thank you.  You were not asking the Chamber to

10     tell you whether or not it has or has not been issued.  You were just

11     wondering if it has been issued, isn't it?

12             MR. GUY-SMITH:  Well, you know me well enough to know that I'm

13     always curious as to what the state of affairs is, but I'm not making --

14     I'm not asking -- I'm asking the Chamber not to go outside of its own

15     rules and regulations.  Of course not.

16             JUDGE MOLOTO:  You know me very well that I always try to curtail

17     your curiosity.

18             MR. GUY-SMITH:  Yes, indeed so.

19             JUDGE MOLOTO:  Thank you so much.

20             Mr. Harvey.

21             MR. HARVEY:  Your Honour, only subject to materials received

22     today which I may have a further disclosure request on, there is nothing

23     else outstanding.  Everything else that has been said to Your Honours

24     reflects the position as I understand it.

25             JUDGE MOLOTO:  Do I understand you very well, there is some

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 1     material that you received today and you might have further request on

 2     disclosure on that matter?  Do you want to make that request now or are

 3     you able to make it at a later stage?

 4             MR. HARVEY:  I will make it at a later stage.

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

 6             MR. HARVEY:  Thank you.

 7             JUDGE MOLOTO:  That being the case then, does that dispose of

 8     that item?  No further comments on that.

 9             The next item relates to agreed facts.  On the 19th of November,

10     2010, the parties filed a joint submission on the existence of an armed

11     conflict in Kosovo and only the 27th of June, 2011, the parties filed a

12     joint motion for admission of agreed evidence.  Are there any matters in

13     respect of which the parties have been able to reach an agreement since

14     that submission?

15             Mr. Rogers.

16             MR. ROGERS:  Your Honour, there's no further developments in that

17     regard.

18             JUDGE MOLOTO:  Thank you so much.

19             Mr. Emmerson, any comment?

20             MR. EMMERSON:  Well, Your Honour, the position is that on the

21     11th of November the Defence on behalf of Mr. Haradinaj served proposed

22     agreed facts running to 89.  We are yet to hear a response from the

23     Prosecution.  So the ball is very firmly in Mr. Roger's court.

24             JUDGE MOLOTO:  We will revert to Mr. Rogers soon.

25             Mr. Guy-Smith.

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 1             MR. GUY-SMITH:  I believe that we have similarly sent to the

 2     Prosecution proposed agreed facts from which we have not received any

 3     response.

 4             JUDGE MOLOTO:  Mr. Harvey.

 5             MR. HARVEY:  Nothing further.

 6             JUDGE MOLOTO:  Mr. Rogers, any response to those two comments?

 7             MR. ROGERS:  No, Your Honours.  We couldn't agree to the agreed

 8     facts that were submitted because we didn't agree to them and there is no

 9     further state that we can take.  Now, it may be that we can discuss

10     matters further, but in the light of the admission of evidence relating

11     to both the armed conflict and also relating to the underlying materials

12     concerning the forensic, it perhaps is rather redundant that we now seek

13     to reach agreement on agreed facts.

14             JUDGE MOLOTO:  As I understand the two Defence lawyers, they were

15     at least respecting a response from you, even if to say, sorry, I can't

16     agree.

17             MR. ROGERS:  Your Honour, forgive me, I think I did respond at

18     the time to say that we weren't able to agree those agreed facts because

19     we, at that time if Your Honour remembers, we were trying to deal with

20     the armed conflict issue, and the only thing that came out of our

21     exchange of proposals was the one agreed fact relating to the armed

22     conflict --

23             JUDGE MOLOTO:  Sure, I understand that.

24             Mr. Emmerson, did I misquote you?  I thought you said we are yet

25     to hear from the Prosecution about this matter.

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 1             MR. EMMERSON:  Your Honour, as far as I recall the answer that we

 2     received was that while the scope of the re-trial remained the subject of

 3     dispute before the Appeals Chamber, the Prosecution was not at that point

 4     in a position to respond, bearing in mind that these proposals were put

 5     forward in November 2010.

 6             JUDGE MOLOTO:  But the scope of the --

 7             MR. EMMERSON:  Has now been resolved --

 8             JUDGE MOLOTO:  Has been resolved.

 9             MR. EMMERSON:  And I would, with respect, invite Mr. Rogers to

10     revisit the issue because the vast majority of the proposed agreed facts

11     are drawn verbatim from the judgement of the Trial Chamber in the

12     original trial, and it really does seem a little difficult to understand

13     why the Prosecution would have a problem --

14             JUDGE MOLOTO:  May I just make this caveat.  This is a re-trial

15     de novo.

16             MR. EMMERSON:  Yes.

17             JUDGE MOLOTO:  As if there was never a trial before.  So this

18     Trial Chamber is not going -- is not going to live in the shadow of the

19     original trial.

20             MR. EMMERSON:  No.

21             JUDGE MOLOTO:  So --

22             MR. EMMERSON:  I --

23             JUDGE MOLOTO:  -- if you want to propose agreed facts to your

24     opposite number you may do so in the course of your job; however, not

25     linked to the fact that they come from the original trial.

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 1             MR. EMMERSON:  Yes, well just to be clear, of course we all

 2     entirely understand that the Bench will approach the issues in this trial

 3     afresh and de novo.  But that being said, obviously the more the parties

 4     are in a position to narrow the issues in dispute --

 5             JUDGE MOLOTO:  [Overlapping speakers]

 6             THE INTERPRETER:  The speakers are kindly asked not to overlap

 7     for the purposes of the interpretation.

 8             MR. EMMERSON:  -- by reference to uncontentious findings of the

 9     previous Trial Chamber, presumably the better for more -- the position of

10     all the parties and since there are a vast number of findings of the

11     original Trial Chamber which don't in any way impinge on the issues that

12     are in dispute between the parties in this re-trial and therefore in way

13     encroach upon the independence of this Trial Chamber to reach findings

14     de novo, the extent to which it would be of assistance to refer back to

15     the previous Trial Chamber judgement as part of an agreed facts approach,

16     obviously has the capacity simply for reducing the scope for unnecessary

17     evidence and argumentation and re-find these facts in relation to issues

18     that are not properly in dispute in this re-trial.

19             JUDGE MOLOTO:  May I just apologise to the interpreters.  It was

20     my fault.  I will not do it again.

21             I hear perfectly what you say, Mr. Emmerson, and I can see the

22     practicality of your suggestion.  What I just am sort of trying to

23     emphasize is for this trial to be perceived as if it's a step-child of

24     the original child.  Things might have been said in the original trial,

25     things might have been adjudicated in the original trial.  If the parties

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 1     are still disputing those things, I think the parties are entitled to

 2     dispute them here because this trial is going ahead as if no trial ever

 3     took place.  If, however, by virtue of issues that were covered whilst in

 4     that trial the parties are able to come together and have their minds

 5     meet, so be it.

 6             MR. EMMERSON:  Well, I'm -- feel confident that we are

 7     approaching the scope and approach of the re-trial from precisely the

 8     same perspective.

 9             JUDGE MOLOTO:  Thank you so much.

10             Mr. Guy-Smith.

11             MR. GUY-SMITH:  Just taking in mind the discussion you just had

12     with Mr. Emmerson, specifically I would agree with what Mr. Emmerson has

13     said and I understand precisely the Chamber's position.  I would point

14     out that the matters -- some of the matters that we are discussing are

15     matters that were not appealed by either party, and with regard to those

16     issues, they are then final judgements and final findings of facts.  So

17     to that extent, to the extent it can be of assistance to this Chamber

18     since in fact these are not matters of dispute, it would seem -- it would

19     seem that it would make some sense in that specific limited regard to

20     take not necessarily a total moment from but in a certain sense take

21     certain guidance from that which is no longer part of this particular

22     re-trial.  There are a number of facts that exist which are pretty

23     plainly understood and have been plainly dealt with previously that we

24     are attempting to seek agreement.  Nothing more, nothing less.

25             JUDGE MOLOTO:  Mr. Guy-Smith, let me just say this, I perfectly

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 1     accept that some issues may not have been appealed and therefore they are

 2     res judicata and that therefore they are facts.  However, this Tribunal

 3     has a mechanism for presenting that kind of -- those kind of facts to the

 4     Court and they come by way of adjudicated facts.  If there is no

 5     agreement -- the fact that matters have been finalised in court doesn't

 6     mean necessarily that all parties agree with the finding and if the other

 7     party says, I'm sorry, I can't let those facts come in by way of

 8     agreement you have a remedy, sir, by way of adjudicated facts.

 9             MR. GUY-SMITH:  I most certainly appreciate that, Your Honour.

10             JUDGE MOLOTO:  So the fact that they have not been appealed

11     doesn't mean that everybody agrees on those facts.

12             MR. GUY-SMITH:  Absolutely understood, and we are in total

13     agreement with the state of the law in this regard.  But the hope, of

14     course, is that the Prosecution will be reasonable with us here so that

15     we can focus on the issues --

16             JUDGE MOLOTO:  I will not comment on the reasonableness of either

17     party.  I believe that all are -- all people here are reasonable.

18             MR. GUY-SMITH:  One would hope.

19             JUDGE MOLOTO:  One would hope.

20             Mr. Harvey.

21             MR. HARVEY:  I'm reasonably in agreement with that, thank you

22     Your Honour.

23             JUDGE MOLOTO:  I appreciate your reasonableness, Mr. Harvey.

24             Mr. Emmerson.

25             MR. EMMERSON:  Before Your Honour returns to Mr. Rogers, perhaps

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 1     rather clumsily, what I was seeking to indicate at the outset is that

 2     before the Defence are in a position to evaluate the necessity for a

 3     motion on adjudicated facts we have to have a categorical response from

 4     the Prosecution as to whether those facts upon which the previous

 5     Trial Chamber adjudicated and which are put forward for the purposes of

 6     agreement as agreed facts in a document served upon them some nine months

 7     ago, whether in the light of the scope of the trial as it now is, they

 8     are in a position to agree those facts; that is to say, those that are

 9     directly sourced, lifted verbatim from the original trial judgement or

10     whether it's necessary for us to place before this Trial Chamber

11     Trial Chamber adjudicated facts --

12             JUDGE MOLOTO:  I understand you perfectly, Mr. Emmerson, thank

13     you so much, which is why I asked Mr. Rogers if he has at least favoured

14     you with the courtesy of a response even if to say I disagree.

15             MR. EMMERSON:  So I would -- at this stage, now that we know --

16             JUDGE MOLOTO:  I will go back to him --

17             MR. EMMERSON:  Now that we know the scope of the re-trial, I'd

18     simply put down a marker to say this:  We would invite the Prosecution to

19     reconsider and confirm what their position is in respect of the

20     particular agreed facts put forward rather than to treat

21     them compendiously, to look at them individually, those that are sourced

22     in the original Trial Chamber judgement, to take a view in relation to

23     it, and to make that clear, let us say within seven days.  Thereafter, if

24     it remains necessary to do so, we will file a motion for adjudicated

25     facts.

Page 152

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

 2             Mr. Rogers, do you have any response to that?

 3             MR. ROGERS:  Yes.  Your Honour, one of the difficulties in this

 4     particular case has been the three defendants approach things - and I

 5     don't mean this critically - approach things from different angles, and

 6     what one might agree the others may not, and it really needs to be

 7     something from all three defendants that is capable of agreement,

 8     otherwise the Court will have to litigate it anyway.  So it seems to me

 9     sensible for the three accused' representatives to put their heads

10     together, come up with a set of agreed facts that they are all capable of

11     agreeing, because otherwise no point with me agreeing it with one if the

12     other two won't agree it, and then advance their joint agreed facts

13     document to me and then I will look at it.  This has been, with respect

14     to my learned friends, and again it's not a criticism, as I understand

15     the particular difficulties of litigating from the Defence perspective,

16     they have to really try to reach an agreement between themselves to put

17     forward the materials that we are capable or may be capable of agreeing

18     and then we can take it from there.

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24             JUDGE MOLOTO:  Can we move into private session.

25             MR. ROGERS:  Yes.

Page 153

 1             JUDGE MOLOTO:  May the Chamber please move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

25             THE REGISTRAR:  Your Honours, we're back in open session.

Page 154

 1             JUDGE MOLOTO:  Thank you so much.

 2             Yes, Mr. Emmerson.

 3             MR. EMMERSON:  Your Honours, simply this:  I understand

 4     Mr. Rogers' plea for tidiness.  There are in reality three sets of agreed

 5     facts put forward by the three accused, but as far as I understand it

 6     there is unlikely to be the slightest dispute between us, and we would

 7     undertake, therefore, by the close of business today, unless anybody

 8     dissents, to indicate to Mr. Rogers that the three separate documents can

 9     be treated by him as a compendious document and we would invite a

10     response as I said within seven days.

11             MR. GUY-SMITH:  I concur.

12             MR. HARVEY:  In full agreement.  Thank you.

13             JUDGE MOLOTO:  That's where we stand, Mr. Rogers, and you will

14     perhaps -- might have to give a response to your colleagues the best way

15     you will receive it.

16             MR. ROGERS:  Yes, I will and I'm very grateful for the agreement

17     that was reached very swiftly.

18             JUDGE MOLOTO:  Thank you so much.

19             Okay.  That disposes the question about agreed facts.  Can we now

20     deal with the guide-lines that were circulated to the parties.  Now, on

21     the 22nd of July, 2010, the Chamber circulated - is it 2010 or 2011? -

22     through its Legal Officer proposal for guide-lines on notice and

23     presentation of evidence and invite the parties to comment on the

24     guide-lines.  The three Defence teams responded on the 15th of August,

25     the Prosecution on the 16th.  The three Defence teams objected to the

Page 155

 1     proposed requirement for a 24 hour notice of documents to be used in

 2     cross-examination, that's paragraph 3 of the proposed guide-lines.  The

 3     Balaj Defence raises objections in particular to paragraph 8 of the

 4     guide-lines according to which a party cross-examining a Rule 92 bis

 5     witness shall limit its cross-examination to the matters in respect of

 6     which cross-examination has been ordered.  The Chamber does note the two

 7     rules or sub-rules that the Balaj Defence refers to.  I personally seem

 8     to understand 90(H)(i), but I'm not quite sure 90 bis (C) how it

 9     operates, but I'll re-study it.  And the Balaj Defence also proposes a

10     new rule according to which second degree or multiple hearsay evidence is

11     inadmissible.  The Prosecution opposes this proposal.  And the Brahimaj

12     Defence seeks confirmation in relation to paragraph 10 of the proposed

13     guide-lines to the effect that cross-examination of a Rule 92 ter witness

14     falls into the category allowing for the time for cross-examination to

15     exceed the time for examination-in-chief.

16             Have I captured the stand of the parties accurately?

17             Mr. Rogers.

18             MR. ROGERS:  Yes, Your Honour has, yes.

19             JUDGE MOLOTO:  You confirm, Mr. Emmerson?

20             MR. EMMERSON:  Your Honour, yes.  I don't know whether

21     Your Honour wishes to hear submissions in relation to point 3 --

22             JUDGE MOLOTO:  I will -- we will come to that.  I just wanted to

23     know have I captured it correctly.

24             MR. EMMERSON:  Yes.

25             JUDGE MOLOTO:  And you confirm that too?

Page 156

 1             MR. GUY-SMITH:  You have, yes.

 2             JUDGE MOLOTO:  And you too, Mr. Harvey.

 3             MR. HARVEY:  Yes, thank you.

 4             JUDGE MOLOTO:  Point 3, I think I can take the Defence point on

 5     that point and I believe, my fellow Judges also do.  However, what is

 6     good for the goose is good for the gander.  You will at some stage or you

 7     might at some stage lead evidence and the Prosecution might have to

 8     cross-examination, it will also be the same rule.

 9             MR. EMMERSON:  Precisely, I would expect that.

10             JUDGE MOLOTO:  Now, would you like us to amend the guide-line to

11     say you give notice of your exhibits at the beginning of

12     cross-examination?

13             MR. EMMERSON:  I think there were two different ways in which

14     this problem has been resolved in different trials.  One is to say after

15     examination-in-chief has begun and the other is to say at the moment of

16     the beginning of cross-examination.  Logically it really ought to be the

17     latter if the aim of postponing disclosure is to be properly maintained.

18     In other words, so that the Prosecution -- I mean, it may seem a little

19     fanciful, but it is not entirely beyond the bounds of possibility that a

20     Prosecutor alight to the documents that are likely to be put in

21     cross-examination would materially alter the scope of

22     examination-in-chief in order to anticipatorily deal with those matters.

23     And since the purpose of a delayed disclosure is to allow

24     cross-examination to be at its most effective in order to give the

25     Trial Chamber the best possible impression of seeing a witness's response

Page 157

 1     when first confronted unexpectedly with the document, it would seem that

 2     the logical solution should be at the moment cross-examination begins.

 3             JUDGE MOLOTO:  And that was in fact your submission.

 4             MR. EMMERSON:  I think different proposals have been put forward.

 5     That is our submission.

 6             JUDGE MOLOTO:  [Overlapping speakers]

 7             And I would imagine that your submission would actually cover the

 8     proposals of the other two Defence teams because the other two Defence

 9     teams it gives them a little bit of leeway.

10             MR. GUY-SMITH:  That's correct.  But my submission is immediately

11     before cross-examination.

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

13             Mr. Harvey.

14             MR. HARVEY:  I'm with Mr. Guy-Smith on that proposal.

15             JUDGE MOLOTO:  Do you have any comments, Mr. Rogers?

16             MR. ROGERS:  Yes, I do.  Mr. Emmerson's original position of

17     course was that he was content for disclosure at the beginning of

18     examination-in-chief for the reasons that he said primarily the concern

19     is that one would pre-prepare a witness during the course of proofing to

20     deal with the documents, and as such once the witness is sworn that

21     wouldn't be possible, and therefore there is no objection from him at

22     that point in time for it to be disclosed at the start of

23     examination-in-chief.

24             Your Honours, we would -- we would prefer the 24 hours because it

25     does give us an opportunity to look at the documents, to identify any

Page 158

 1     rebuttal material that there may be, and for us to prepare ourselves to

 2     deal with the witness and to deal with any answers or to consider or to

 3     think about the re-examination that we may wish to undertake with the

 4     witnesses.  The suggestion of not allowing us to see them earlier is

 5     really is suggesting that we would try to do something improper with the

 6     witness.  I don't think my learned friends want to put that so strongly,

 7     but really that's what's sitting underneath their concern.

 8             Your Honours, so we would prefer the original view of the Chamber

 9     for 24 hours' notice because it does assist us to prepare the case

10     effectively to deal with any matters that arise.  If not, then we would

11     prefer again for it to be at the beginning of examination-in-chief, which

12     again gives us a little more time to try to find the materials, look at

13     the documents.

14             Your Honours, can I say one of the particular difficulties here

15     is the nature of much of this evidence is likely to be 92 ter and really

16     there won't be any examination-in-chief, and so the documents will

17     arrive, examination-in-chief will be over, and during the course of the

18     cross-examination one's having to not only listen to the answers but look

19     at the documents and try to look into them to see if there is any other

20     material which may rebut or may provide an alternative explanation to the

21     material that's identified.  And my learned friends know perfectly well

22     that in cases of this size with a huge amount of documentation that

23     exists, that takes an amount of time for both sides to do in fairness.

24     And, Your Honour, I think if it's provided too late, the risk is

25     witnesses end up being re-called in order to deal with new material

Page 159

 1     that's just been discovered that if one had had sufficient notice one

 2     would have been able to deal with in evidence when the witness was before

 3     the Court.

 4             I think it depends a little on how one views the adversarial

 5     process or the process that the Court is adopting.  If one's looking at

 6     it as an opportunity to try to establish the full picture from the

 7     witness, then there really is no objection to notice being given to the

 8     Prosecutor of the material that intends to be used.  If one is looking at

 9     it perhaps in a more challenging way, then the traditional common law

10     approach of rabbits out of hats and startling opportunities for witnesses

11     may be more favourable.  Your Honour, I think in the more mature system

12     one is looking at more maximum notice, and I would ask for as much notice

13     as the court considers appropriate.

14             MR. EMMERSON:  Can I respond very briefly.

15             JUDGE MOLOTO:  By all means, Mr. Emmerson.

16             MR. EMMERSON:  First of all, it had never been the position of

17     the Haradinaj Defence that the beginning of examination-in-chief was

18     preferable, it was simply the submission in the e-mail that was sent to

19     the Court that that was the position that had been adopted by previous

20     Trial Chamber trying this case.  And as Your Honour rightly pointed out,

21     this is not the step-child of the previous trial, but that being said

22     Mr. Rogers' suggestion that this is a case where there's likely to be a

23     large amount of 92 ter evidence and therefore no examination-in-chief

24     rather undercuts the proposition that the time-frame should be the

25     beginning of examination-in-chief rather than cross-examination because

Page 160

 1     if he's right that there's not going to be any examination-in-chief those

 2     two will collapse into one and the same.

 3             And finally this, when this matter was discussed in the previous

 4     trial, it was discussed in writing, the detailed motion, in which both

 5     parties explained their respective positions rather like Mr. Rogers has

 6     just sought to do on the back of an envelope by suggesting that there is

 7     something immature about trial by ambush or pulling rabbits out of hats

 8     and to which the Defence responded in writing at some length examining

 9     the history and value of cross-examination to the adversarial trial

10     process.  These are adversarial proceedings and it's long been recognised

11     in all jurisdictions which adopt adversarial proceedings that getting at

12     the truth is very often most effectively achieved by seeing a witness's

13     first reaction when confronted.

14             Now, it's wrong to suggest that for us to insist on disclosure at

15     that moment, in other words, at a time when it could not materially

16     affect the witness's prior testimony, somehow implies impropriety on the

17     part of the Prosecution, because were Mr. Rogers to get what he seeks,

18     which is 24 hours' notice of the very issues that are going to be put to

19     confront and challenge these three key witnesses, there would be nothing

20     improper in him using that material in a proofing session in forewarning

21     the witness and asking for their comments on the material which is likely

22     to be put to them in cross-examination.  It wouldn't be coaching, it

23     would be asking for their prior response and thereby depriving the

24     Trial Chamber of the very tool that it most accurately and acutely needs

25     in assessing whether they're telling the truth or not.

Page 161

 1             JUDGE MOLOTO:  Any further comments, Mr. Guy-Smith?

 2             MR. GUY-SMITH:  I recently finished a trial -- I recently

 3     finished a trial which I believe that you were intimately involved in.

 4     This was a procedure that we used.  The documents that were involved in

 5     that case are vastly greater than the documents that will be involved in

 6     this case, the magnitude, the sheer magnitude of paper.  And if the

 7     Chamber may recall, nary a witness was recalled, not one witness was

 8     recalled as a result of this particular procedure being used in that

 9     case.  It was sauce for the goose and for the gander.  It worked

10     efficiently, it worked expeditiously, and I see no reason for it not to

11     be used again.

12             JUDGE MOLOTO:  And what was that procedure?

13             MR. GUY-SMITH:  That procedure was immediately before

14     cross-examination.  That was the procedure that I submitted in the

15     proposed modification that I made.

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

17             Mr. Harvey, do you have any final word on this?

18             MR. HARVEY:  Nothing to add, thank you.

19             JUDGE MOLOTO:  I guess on this issue specifically the Chamber

20     will reserve its decision and will confer and will come back to the

21     parties about it okay.

22             MR. ROGERS:  Yes, Your Honour.  May I just raise one matter about

23     the scope of 92 ter in particular because it may impact upon

24     Your Honours' decision.

25             Your Honour, our understanding is that the Tribunal's and

Page 162

 1     Chambers in this particular Tribunal do permit some scope for

 2     examination-in-chief even with a 92 ter witness beyond merely reading out

 3     the summary.  And I was just going to raise, it may be a convenient

 4     moment to deal with it, Your Honours' understanding of how paragraph 7

 5     would work in practice because on one view it would appear that the only

 6     thing that could be dealt with during the course of 92 ter evidence would

 7     be the reading out of the summary, but clearly when one is tendering

 8     documents through a witness - and I have in mind in particular

 9     Mr. Zyrapi, it would take a while to go through those documents with the

10     individual to tender them into evidence.  And I'm anticipating that

11     Your Honour would be permitting a certain amount of scope for

12     examination-in-chief even with a 92 ter --

13             JUDGE MOLOTO:  Very limited.

14             MR. ROGERS:  -- witness to clarify any matters, a certain amount

15     of settling is normal with witnesses who have just come into the witness

16     box, and then to deal with any documents that need to be produced through

17     the witness.  That's my understanding of how the Chamber is likely to

18     proceed.  If I might just confirm that's the case.  And if not, what Your

19     Honours' views would be so that we can modify our procedures accordingly.

20             JUDGE MOLOTO:  Did you say you might just confirm, or do you want

21     the Chamber to confirm for you?

22             MR. ROGERS:  Yes, please.  If you might just confirm for me, that

23     is you, the Chamber, might just confirm for me my understanding.

24             JUDGE MOLOTO:  I would imagine that that would be so said.

25             MR. ROGERS:  Thank you.

Page 163

 1             JUDGE MOLOTO:  Particularly where there are a number of exhibits

 2     to be tendered in because they would have to be tendered in one by one.

 3             MR. ROGERS:  Exactly.  Thank you.

 4             JUDGE MOLOTO:  Indeed.

 5             MR. ROGERS:  I'm grateful.

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

 7             MR. GUY-SMITH:  Yes, if I'm right with regard to the specific

 8     issue at hand, I believe that the testimony of at least one witness who

 9     the Prosecution intends to introduce by way of 92 ter is a situation in

10     which the witness has already been extensively examined about each and

11     every document that is part of their 92 ter statement.  If such is the

12     case, then there will be no reason for there to be any further

13     clarification or examination on those documents because it had already

14     been done in a previous proceeding and/or through previous statements,

15     where the explanation had been made.

16             JUDGE MOLOTO:  I'm not quite sure I understand what you mean by

17     previous proceeding.

18             MR. GUY-SMITH:  Well, in the previous trial.

19             JUDGE MOLOTO:  I'm sorry, Mr. Guy-Smith, I've got to repeat that.

20     We are not in the shadow of the previous trial.

21             MR. GUY-SMITH:  I appreciate that, but I --

22             JUDGE MOLOTO:  This Trial Chamber must determine independently

23     the admissibility of every exhibit that is tendered into evidence.

24             MR. GUY-SMITH:  That's not what I'm suggesting, Your Honour.

25             JUDGE MOLOTO:  Okay.

Page 164

 1             MR. GUY-SMITH:  What I'm suggesting is, as we both know, a 92 ter

 2     witness takes the stand, the questions are asked of that 92 ter witness,

 3     which is:  Will you -- do you adopt the statement that you made

 4     previously?

 5             JUDGE MOLOTO:  Statement, not proceeding, yeah.

 6             MR. GUY-SMITH:  Statement.  In this situation it would be a

 7     statement under oath.  In this situation what you have is you have a

 8     witness who has been previously shown an exhibit, which is now part and

 9     parcel of that 92 ter statement, which he is now once again adopting, and

10     when the admission is brought by the Prosecution, they will be admitting

11     wholesale, I would think, and perhaps I'm incorrect, they will be

12     admitting wholesale all of those exhibits that were previously the

13     subject matter of this particular witness's testimony and/or statement,

14     however you wish to characterise it.  Therefore, the notion that there

15     will be further explanation with regard to those exhibits means in

16     essence that the witness is a viva voce witness and not a 92 ter witness,

17     and there is a distinction between the two and the reason that we have

18     the 92 ter rule is to expedite proceedings.  If the Prosecution wishes to

19     call the witness as a viva voce witness, then they should do so.  If

20     they're using the 92 ter procedure which has happened often, hopefully

21     will not happen in this particular trial, as a manner to get around the

22     viva voce time concerns, that should not be allowed.

23             MR. ROGERS:  Your Honour --

24             JUDGE MOLOTO:  I think --

25             MR. ROGERS:  -- before you speak, may I just reassure

Page 165

 1     Mr. Guy-Smith that it's not our intention to go through all of the

 2     exhibits all over again.  It's to deal with the new material that we have

 3     identified on the 65 ter exhibit list.  One of the dangers I think of

 4     dealing with things in abstracto, as we sort of are a little bit, is that

 5     perhaps we can become concerned about matters that actually aren't going

 6     to happen in reality.  I was simply seeking some general understanding of

 7     Your Honours' views about how to deal with 92 ter, and I was expecting

 8     that we might deal with any specific objections as and when the witnesses

 9     came to testify.  But if it helps Mr. Guy-Smith, I can tell him that

10     that's -- we don't intend to abuse Rule 92 ter to get around the viva

11     voce time-limits because we've already shrunk our case to 36 hours and

12     I'm not sure it would be of much use trying to do that.  So I hope that's

13     some reassurance to him that we don't intend to do what he thinks we

14     might.

15             JUDGE MOLOTO:  Well, you just took the words out of my mouth.  I

16     was going to say to Mr. Guy-Smith that we will deal with these issues as

17     and when they arise as we go along because right now, as you rightly say,

18     we are just arguing in the air and we don't have a concrete problem for

19     us that we need to solve.  I would imagine that as we go along the

20     Chamber will rule in the interests of justice on how to deal with each

21     situation.

22             MR. GUY-SMITH:  I appreciate, Your Honour, but as a matter of

23     fact we do have a concrete problem because we have not received 92 ter

24     statements from some of these proposed witnesses with regard to the - as

25     Mr. Rogers has put it - the new evidence, so we don't know what the new

Page 166

 1     evidence is that he's referring to.

 2             JUDGE MOLOTO:  That's only reason why we can't even begin to

 3     talk.  Let's talk when we have the new evidence.

 4             MR. EMMERSON:  Your Honour, can I just make one observation which

 5     perhaps can be made --

 6             JUDGE MOLOTO:  Yes, Mr. Emmerson.

 7             MR. EMMERSON:  -- in principle, and it may seem an obvious one

 8     but since we're in the business of setting out what our understanding of

 9     the procedure is likely to be in view of the very unusual circumstances

10     in which this trial comes to be conducted, and of course mindful of the

11     fact that we are not a step-child, nonetheless with those witnesses who

12     are brought by the Prosecution for a second time in order to give

13     supplementary evidence, it is certainly my understanding of the most

14     efficient and ordinarily conduct of these proceedings that since the

15     Prosecution have also sought to introduce via 92 ter the transcripts of

16     the evidence that the witnesses gave, including cross-examination at the

17     original trial as part of their testimony, that it would be unnecessary

18     as a duplication of effort and expense for cross-examination to be

19     repeated on the same topics; in other words, it would not be my intention

20     to re-cross-examine any witness who gave evidence at the original trial

21     on the topics or in the manner that I cross-examined him at the original

22     trial, instead relying and standing upon the cross-examination and

23     answers given at the trial number one.  Failing that, otherwise you'll

24     simply be re-hearing cross-examination that's already been dealt with.

25     Obviously if there's new material that the witness is now being called to

Page 167

 1     produce, then cross-examination may be directed to the new material, but

 2     in truth that's the only fresh evidence being put before this

 3     Trial Chamber.  That same witness will then be adopting the evidence that

 4     they gave at the previous trial, which of course includes the evidence

 5     that they gave under cross-examination.

 6             And so if I can just put it bluntly -- I mean, to take an

 7     example, there is one witness who is going to be giving evidence before

 8     you about the production of intelligence documents by the Serbian

 9     intelligence services.  At the original trial under cross-examination he

10     acknowledged that the statements had been obtained through a combination

11     of torture, blackmail, and bribery.  I don't propose to re-traverse that

12     general methodology.  It is there on the transcript for all to see.  And

13     so if I can indicate that my general approach will be simply to adopt the

14     cross-examination and evidence given in answer to cross-examination at

15     the original trial in respect of evidence given at the original trial and

16     to confine my cross-examination in the interests of efficiency and in the

17     interests of justice to any new matters that the witness might now be

18     being called to testify about over and above that which they were called

19     to testify about at the original trial.

20             JUDGE MOLOTO:  Let me just say before Mr. Guy-Smith stands up

21     that I appreciate what you say; however, with the caveat that I put

22     earlier that we are not in the shadow of the previous trial, I do not

23     think it is for the Chamber to comment on how the Defence must conduct

24     its case.  But as I say, I appreciate the fact that you are contributing

25     towards the expeditiousness of the trial, and to that extent I'm very

Page 168

 1     grateful and I'm sure the Chamber is.  But you are not limited in what

 2     questions you would like to ask as a cross-examiner within the bounds of

 3     the Rules.

 4             MR. EMMERSON:  No, I appreciate that.  But it could -- just to

 5     tease this out just a little further, there could possibly be a

 6     misunderstanding as between Your Honour and myself.  I will treat

 7     questions asked and answers given at the original trial which are being

 8     admitted pursuant to Rule 92 ter with equal evidential status and weight

 9     as a question and answer put to the witness in these proceedings.  And on

10     that understanding, I hope it will be possible to proceed expeditiously.

11             JUDGE MOLOTO:  Certainly if a transcript is admitted, that will

12     be taken as it stands.

13             MR. EMMERSON:  I'm grateful.

14             JUDGE MOLOTO:  Thank you so much.

15             Yes, Mr. Guy-Smith.

16             MR. GUY-SMITH:  And that indeed was the point that I was

17     apparently inartfully - and I apologise for that - trying to make when I

18     initially started this particular journey with you.  The issue of whether

19     or not it is appropriate for new evidence to come through a 92 ter

20     witness is presently the subject matter of a pending motion and I will

21     leave it at that for now.

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

23             Mr. Harvey, everybody has had his part of the cherry, you don't

24     want to take yours?  Okay.

25             As I did say -- are we still on that point, we're still on 3,

Page 169

 1     guide-line 3, the Chamber will decide that and will provide a new

 2     guide-line or stick with what we have depending on what we decide.

 3             Mr. Guy-Smith, in your objections to paragraph 8, you said you

 4     don't want to be limited to the issues raised in examine -- obviously,

 5     you might want to cross-examine on credibility which may not necessarily

 6     be -- have been canvassed in examination-in-chief.  I -- within those

 7     rules of cross-examination we understand.

 8             MR. GUY-SMITH:  Very well.

 9             JUDGE MOLOTO:  Thank you so much.

10             MR. GUY-SMITH:  With that understanding, there's no problem.

11             JUDGE MOLOTO:  Thank you so much.

12             Mr. Rogers, you take issue with Mr. Guy-Smith's submission on the

13     inadmissibility of double hearsay.  I would like you to start with single

14     hearsay.  Are you saying -- I understand that at this Tribunal it is

15     admissible.  The question of weight is another matter.  Can I hear what

16     you have to say or let the Chamber hear what you have to say on the

17     double hearsay?

18             MR. ROGERS:  Your Honour, it's always the same point.  It's about

19     weight and the weight that the Chamber is prepared to give to this form

20     of evidence, and it may be that at the end of the day, having heard all

21     of the evidence, the Chamber attributes to it no weight.

22             JUDGE MOLOTO:  At all.

23             MR. ROGERS:  At all.  But it may be that the Chamber attributes

24     to it some weight.  It may depend on the other material that is produced

25     during the course of the trial, and I think, respectfully, to try to

Page 170

 1     produce a blanket exclusion at this stage of the proceedings would be --

 2     would not be right.  It would be wrong.  It would be better to receive

 3     the evidence that is available and for the Court at the end of the day to

 4     determine what weight, if any, it gives to that material.

 5             JUDGE MOLOTO:  Mr. Guy-Smith, do you have any response to that?

 6             MR. GUY-SMITH:  Yes, I do.  I actually thought long and hard

 7     about this and I attempted to take into consideration the precise concern

 8     that Mr. Rogers has raised.  And if we are to look at this second

 9     sentence that I suggested as a rule here, I suggested multiple hearsay

10     and/or unsourced hearsay is inadmissible in the absence of independent

11     objective corroborative evidence.  So that --

12             JUDGE MOLOTO:  That's a standing rule even first-hand hearsay.

13             MR. GUY-SMITH:  Well --

14             JUDGE MOLOTO:  Single hearsay, if I can use that term.  I don't

15     know what term to use.

16             MR. GUY-SMITH:  I think that we all appreciate the difficulty

17     with multiple hearsay because the distinction between multiple hearsay or

18     unsourced hearsay and rumour and gossip is unfortunately virtually

19     indistinguishable --

20             JUDGE MOLOTO:  In principle how is single hearsay not rumour or

21     gossip?

22             MR. GUY-SMITH:  Single hearsay, very simply this:  Single hearsay

23     comes from a position where it's an out of court statement which is

24     made -- offered to prove the truth of matters asserted by -- it could be

25     by a single author.  For example, I could say Judge Moloto said to me

Page 171

 1     that Mr. Rogers is not being particularly candid.  Now, if I were to say

 2     such a thing, and I don't think that you would say such a thing nor do I

 3     think that Mr. -- the issue was whether or not Mr. Rogers is particularly

 4     candid or not, that certainly wouldn't be an issue of rumour.  However --

 5     however, if I were to say:  I have heard in the courtroom or I have heard

 6     at the Tribunal that Mr. Rogers is not candid --

 7             JUDGE MOLOTO:  That's the unsourced --

 8             MR. GUY-SMITH:  That's the unsourced one.

 9             JUDGE MOLOTO:  The multiple one.  You have heard from Mr. Mair

10     that Judge Moloto said that Mr. Rogers is -- you didn't hear directly

11     from Judge Moloto.

12             MR. GUY-SMITH:  Okay.  Very well.

13             JUDGE MOLOTO:  That's now the multiple --

14             MR. GUY-SMITH:  That's your multiple situation, and in the

15     multiple situation it raises a couple of concerns not the least of which

16     being how do I get to investigate it, how do I counter that.  What is the

17     evidentiary value, if any, to a fact-finder?  And with regard to the

18     issue of weight versus admissibility, and I appreciate and I have full

19     confidence that the Chamber understands how to do its job and that's

20     really not what I'm going after here, but it seems to me that we run

21     dangerously close to being in a situation where the Prosecution is going

22     to bucket-in rumour and gossip, multiple hearsay, unsourced hearsay with

23     regard to ultimately in this -- with regard to ultimately in this case

24     character.

25             JUDGE MOLOTO:  I'm not quite sure what the basis for that

Page 172

 1     submission is.

 2             MR. GUY-SMITH:  The disclosure that I have received from the

 3     Prosecution and I really --

 4             JUDGE MOLOTO:  Can I suggest --

 5             MR. GUY-SMITH:  Sure --

 6             JUDGE MOLOTO:  -- at this point that as and when that happens you

 7     jump up, you jump up and object, and let the Chamber rule on that.

 8             MR. GUY-SMITH:  I'll be more than happy to do that, but I also

 9     think that in a responsible sense with regard to an adversarial process,

10     the notion that unsourced hearsay can be given any credence whatsoever

11     from the standpoint of admissibility is something that should be arrested

12     at the front gate.  With regard -- I understand your concerns about

13     multiple hearsay, I take a different view, but I don't think I'm going to

14     be particularly successful in arguing through the multiple hearsay by the

15     way that you are looking at me and the kind of conversation we are

16     having.

17             JUDGE MOLOTO:  You are clairvoyant?

18             MR. GUY-SMITH:  No, no, I've just -- I've spent a lot of time

19     with you, Your Honour, but I really do believe that with regard to the

20     issue of unsourced hearsay, the dangers of giving it any credence

21     whatsoever far outweigh any utility that it can have to the fact-finder.

22             MR. EMMERSON:  Can I just indicate this, the quality of the

23     material that's going to be put before you from, in particular, the

24     witness I adverted to a moment ago from the intelligence services

25     including as it does statements which on their own admission were

Page 173

 1     obtained in the fashion I just described, will, I apprehend, in due

 2     course make it entirely clear to Your Honours what it is Mr. Guy-Smith is

 3     so anxious about because there will be, and you will see it in due

 4     course, just a vast amount of frankly forensic rubbish being put before

 5     you in an attempt to create a no-smoke-without-fire-type approach even

 6     though the source of it is largely often anonymous and the methodologies

 7     by which it has been obtained are amongst the basest for any

 8     investigative source in the world.

 9             JUDGE MOLOTO:  Can I assure the parties that the Chamber will

10     make sure that it adheres to rules of evidence, rules of procedure and

11     the rules of this Court to ensure that only credible, probative, relevant

12     evidence is admitted.

13             MR. EMMERSON:  And in effect that is precisely what we would

14     anticipate.

15             JUDGE MOLOTO:  Thank you so much.

16             MR. EMMERSON:  And in due course you'll see why we're concerned

17     about it because the sort of material that is going to be put to you

18     falls very short of any of those standards --

19             JUDGE MOLOTO:  And in fact that's why we have you here, to make

20     sure that you can either block it at the first gate, front gate, or at

21     the back gate, or the middle gate, whatever gate -- whatever gate you

22     want --

23             MR. EMMERSON:  In the end, I apprehend Your Honours will have no

24     problem blocking it somewhere along the line.

25             JUDGE MOLOTO:  Sure.  Thank you so much.  You have something to

Page 174

 1     say?  I --

 2             MR. ROGERS:  Your Honours, I hesitate to say anything more unless

 3     Your Honours wish me to, but --

 4             JUDGE MOLOTO:  I don't necessarily wish you to say anything, but

 5     if you have something I don't want to gag you.

 6             MR. ROGERS:  I'm happy to be gagged.

 7             JUDGE MOLOTO:  You're happy to be gagged.  Mr. Harvey, you

 8     don't --

 9             MR. HARVEY:  I'm happy for him to be gagged as well, Your Honour.

10             JUDGE MOLOTO:  What about you, Mr. Harvey?

11             MR. HARVEY:  Nothing further.  Thank you.

12             JUDGE MOLOTO:  You're gagging yourself.  Okay.

13             MR. EMMERSON:  Can I make just one procedural point for the sake

14     of accuracy.  I notice on the transcript, page 31, lines 1 to 7, a

15     lengthy submission of Mr. Rogers is attributed to Your Honour as though

16     it were Your Honour's response to a submission.  It's quite important

17     that that be qualified.

18             JUDGE MOLOTO:  Indeed, you are very right.  I would hate to take

19     credit for Mr. Rogers' brilliant submissions.  Line?

20             MR. EMMERSON:  Page 31, lines 1 to 7.

21             JUDGE MOLOTO:  One to 7.  Okay.  I guess our stenographer will

22     make note of that.

23             Thank you so much, Mr. Emmerson.

24             Well, then let's leave that point.  I need to be reminded, what

25     were we talking about -- oh, the admissibility of hearsay.  Maybe the

Page 175

 1     Chamber might confirm for you, Mr. Harvey, that what you asked in

 2     relation to paragraph 10, yes, will be taken on board.

 3             MR. HARVEY:  I'm grateful.  Thank you, Your Honour.

 4             JUDGE MOLOTO:  You're welcome.  And I would imagine that that

 5     disposes of all the issues that were raised by the parties on this

 6     matter?  Thank you so much.

 7             Item 6 is a joint motion for admission of evidence.  On the

 8     27th of June, 2011, the parties filed a joint motion for admission of

 9     agreed evidence with confidential annex A and public annex B.  Annex A

10     contains a list of transcript -- of testimony of witnesses and/or witness

11     statements from the original case, that is the Haradinaj case, and

12     associated exhibits listed in the Prosecution's Rule 65 ter exhibit list.

13     Annex B contains a list of additional exhibits not on the Prosecution's

14     Rule 65 ter exhibit list which the Defence proposes for admission and to

15     which the Prosecution does not object.  The Chamber takes note of the

16     content of these documents.  It will request the Registry -- the Registry

17     Court Officer, I beg your pardon, to assign a P exhibit number to each

18     document listed in annex A of the joint motion of the 27th of June and a

19     D exhibit number to each document listed in annex B and to notify the

20     parties and the Chambers accordingly.  Does that settle it?

21             Mr. Rogers, would that settle it that way?

22             MR. ROGERS:  Yes.  Thank you, Your Honour.

23             JUDGE MOLOTO:  Mr. Emmerson?

24             MR. EMMERSON:  Your Honour, yes.

25             JUDGE MOLOTO:  And Mr. Guy-Smith?

Page 176

 1             MR. GUY-SMITH:  Yes, it does.

 2             JUDGE MOLOTO:  And Mr. Harvey.

 3             MR. HARVEY:  Thank you.

 4             JUDGE MOLOTO:  Madam Registrar, will you please take note of

 5     that.

 6             THE REGISTRAR:  Your Honours, an internal memorandum will be

 7     distributed to the parties with the relevant numbers.

 8             JUDGE MOLOTO:  Thank you so much, Madam Registrar.

 9             Then can we move to item 7, reference to exhibit numbers.  It's

10     been brought to the attention of the Chamber that counsel may

11     inadvertently - and I say this with trepidation, I really didn't want to

12     raise this but this is what has been brought to the Chamber's notice.

13     That counsel may inadvertently refer to documents tendered in the present

14     trial by the exhibit number in the original trial which may create

15     confusion.  The Chamber would request counsel to pay special attention to

16     this issue and to refer to documents either by their Rule 65 ter number

17     or by the document ID number or by the exhibit number in this case to

18     avoid any possible confusion with documents admitted in the original

19     Haradinaj trial.

20             Is that okay by you, Mr. Rogers?

21             MR. ROGERS:  We will do our very best to avoid the pitfalls.

22             JUDGE MOLOTO:  Thank you.

23             And Mr. Emmerson.

24             MR. EMMERSON:  Yes.

25             JUDGE MOLOTO:  And Mr. Guy-Smith.

Page 177

 1             MR. GUY-SMITH:  Yes.

 2             JUDGE MOLOTO:  And Mr. Harvey.

 3             MR. HARVEY:  Likewise.

 4             JUDGE MOLOTO:  Thank you so much.

 5             Then we move on to opening statements and statements of the

 6     accused.  Pursuant to Rule 84 of the Rules, before the Prosecution -- the

 7     presentation, I beg your pardon, of evidence by the Prosecution each

 8     party may make an opening statement.  The Defence may, however, elect to

 9     make its statement before the presentation of evidence for the Defence.

10     I believe counsel for Haradinaj has indicated informally that it intends

11     to make an opening statement.

12             Thank you very much, Mr. Emmerson, for confirming that.

13             Is any other of the Defence teams in a position to indicate

14     whether it would be making an opening statement tomorrow, Mr. Guy-Smith?

15             MR. GUY-SMITH:  It is not our intention to be making an opening

16     statement at the outset of these proceeding.

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

18             Mr. Harvey.

19             MR. HARVEY:  Neither is it ours.  Thank you very much,

20     Your Honour.

21             JUDGE MOLOTO:  Thank you so much.

22             Mr. Rogers, are you able to give an indication of the length of

23     the opening statement of the Prosecution?

24             MR. ROGERS:  Yes, I am.  I think I'll be a couple of hours in

25     opening the case.  I have some --

Page 178

 1             JUDGE MOLOTO:  That is a couple --

 2             MR. ROGERS:  About two, between two and three, but I think it's

 3     nearer to two than three.

 4             JUDGE MOLOTO:  Okay.

 5             Thank you so much.

 6             MR. EMMERSON:  And I shall be less than an hour.

 7             JUDGE MOLOTO:  You will be less than an hour.  So it could be

 8     three and four.  Okay.

 9             Now, the Rules also provide for the possibility for the accused,

10     if he so wishes, to address the Chamber after the opening statement of

11     the parties or if the Defence elects to defer its opening statement after

12     the opening statement of the Prosecution.  Are any of your accused

13     desirous of making some statements?

14             MR. EMMERSON:  Your Honour, no.

15             JUDGE MOLOTO:  Not yours.

16             MR. GUY-SMITH:  No.

17             JUDGE MOLOTO:  Mr. Harvey.

18             MR. HARVEY:  No.

19             JUDGE MOLOTO:  Thank you so much.  It makes life much easier.

20             Item 9, the availability of the Prosecution witnesses scheduled

21     to testify in the first two weeks of sittings.  Mr. Rogers, do you wish

22     to make any submissions on the availability of your witnesses scheduled

23     for the first two weeks of trial?

24             MR. ROGERS:  Yes, could we go into private session, please.

25             JUDGE MOLOTO:  May the Chamber please move into private session.

Page 179

 1                           [Private session]

 2   (redacted)

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 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

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Page 180











11  Pages 180-199 redacted. Private session.















Page 200

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                            [Open session]

 7             THE REGISTRAR:  Your Honours, we're in open session.

 8             JUDGE MOLOTO:  Thank you so much.

 9             We'll take a break and come back in about 20 minutes.

10                           --- Recess taken at 4.01 p.m.

11                           --- On resuming at 4.25 p.m.

12             JUDGE MOLOTO:  Thank you very much.

13             Just to round off, I wanted to say if I -- and I think I did say

14     it a little earlier, on this point we are just going to have to wait for

15     developments to play themselves out and -- but we are not going to

16     postpone anything or cancel any session, court session.  So that if he

17     comes early, we can sit; if he doesn't come early and it's beyond our

18     control, there is nothing we can do about it.

19             MR. EMMERSON:  Yes, and plainly there would need to be an

20     application made on his behalf -- I'm sorry, plainly I'm sure

21     Your Honours wouldn't tolerate the tail wagging the dog.  There would

22     have to be an application made on his behalf by his counsel for his

23     absence in return -- in response to the subpoena that requires his

24     attendance on Friday.

25             JUDGE MOLOTO:  I would imagine that everything is going to be

Page 201

 1     done by the Rules.

 2             MR. EMMERSON:  Yes.

 3             JUDGE MOLOTO:  Thank you so much.  We close the point now on ...

 4                           [Trial Chamber and Registrar confer]

 5             JUDGE MOLOTO:  We were -- we went into open session.  That matter

 6     is closed.  I'm not going to refer to it any longer.

 7             Mr. Rogers, we are on the question of the availability of the

 8     Prosecution witnesses scheduled for the first week.  We have dealt with

 9     one.  Are you able to tell us any more about the rest?

10             MR. ROGERS:  Yes, I'm afraid we will need to go back into private

11     session.

12             JUDGE MOLOTO:  May the Chamber please move into private session.

13                            [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

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25   (redacted)

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11  Pages 202-204 redacted. Private session.















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 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we're back in open session.

 9             JUDGE MOLOTO:  Thank you so much.

10             I know this may not necessarily be provided for in the

11     Pre-Trial Conference, but it's provided for in the Status Conference.

12     But even before I go to the last item, I just do want to ask the accused

13     to say anything they would like to say about their health and their

14     conditions of detention.

15             Mr. Haradinaj.

16             THE ACCUSED HARADINAJ:  Everything okay, Your Honour, health and

17     conditions.

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

19             Mr. Balaj.

20             THE ACCUSED BALAJ: [Interpretation] Everything, everything is

21     absolutely fine, Your Honours.  Thank you.

22             JUDGE MOLOTO:  Thank you so much.

23             And Mr. Brahimaj.

24             THE ACCUSED BRAHIMAJ: [Interpretation] I have nothing further to

25     say.  Thank you.

Page 206

 1             JUDGE MOLOTO:  Thank you very much.

 2             Now, is there any other matter that any of the parties may wish

 3     to raise at this stage?

 4             Mr. Rogers.

 5             MR. ROGERS:  Just to raise the issue of Albanian translation.  We

 6     understand there are very limited translation resources within the

 7     Tribunal, and that may cause some difficulties in providing Albanian

 8     translations, for example, of proofing notes or that type of material.

 9     We will do our best to get those translated as quickly as we can.  In

10     terms of providing them to the Defence, as soon as they are available, we

11     will provide them.  So they may come on a Sunday evening once they are

12     ready so my learned friends should be aware of that.  But as soon as any

13     proofing note is available, it will be provided.

14             JUDGE MOLOTO:  Thank you, Mr. Rogers.

15             MR. ROGERS:  And I don't know whether -- I see Mr. Guy-Smith, but

16     perhaps I can just deal with one other matter which is photographs and

17     maps.  Your Honour, we intend to provide the Chamber with a bundle of

18     photographs and maps relevant to the case.  They've all been disclosed,

19     they've all been available to the Defence.  So I've mentioned that and it

20     may be helpful for you to have those readily available as opposed to keep

21     trying to find them in e-court.  Sometimes it's easier to have them

22     there.  The only one that isn't there is a map that I will refer to just

23     by way of opening tomorrow which is a map showing the general locations

24     of the area with some of the geographical detail of the main map removed

25     so it's easier to see, and I will show my learned friends it in advance,

Page 207

 1     but that's all it is, it's just an extract, something that we have

 2     created to assist I hope.  That's all I think I wanted to raise, yes.

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

 4             Mr. Emmerson.

 5             MR. EMMERSON:  [Microphone not activated]

 6             JUDGE MOLOTO:  Mr. Guy-Smith.

 7             MR. GUY-SMITH:  Yes, I want to take this opportunity to very

 8     briefly alert the Chamber once again to the question that is presently

 9     pending in regards to both the Balaj and Brahimaj teams with regard to a

10     meeting so that we can appropriately deal with resources.  There are some

11     issues that have arisen, and I'm quite mindful of these issues,

12     specifically with regard to the issue of translation and Albanian

13     interpreters because we actually have somewhat of a solution in terms of

14     the limitations of the interpreter services that presently exist.

15     However, we need to have particular resources in order to be able to

16     assist in that solution because we're about to lose one of our team

17     members, but I think this is a matter that can be taken up outside of

18     these proceedings, but I wish to alert the Court to that.

19             JUDGE MOLOTO:  I'm not quite sure I'm grasping exactly what you

20     are saying.  You are saying because of resources you are losing somebody

21     else?

22             MR. GUY-SMITH:  Yes, because of resources I'm losing somebody

23     else.

24             JUDGE MOLOTO:  And that person is an Albanian-speaking kind of

25     person?

Page 208

 1             MR. GUY-SMITH:  Well, he's currently volunteering right now.  He

 2     has been with me since the very first Kosovo case.  He is an invaluable

 3     resource.  He is not only an invaluable resource from the standpoint of

 4     his interpretation abilities, he also is a lawyer in his own right and is

 5     an individual who has institutional knowledge which is of great

 6     assistance not only to my team specifically but to all of the co-accused

 7     and has been used in that fashion, but we may be losing him.  As a matter

 8     of fact I -- at this point I believe we will be losing him unless

 9     something can be remedied, but that's something we can deal with away

10     from these proceedings.

11             The other thing I want to raise, and I'm raising this very, very

12     gently and very delicately because it's something that's been repeatedly

13     said at today's proceedings, which is the question of whether or not the

14     Prosecution is bound by that order referring to a previous order.  And

15     you had indicated - and it's been said a number of times - that we are

16     not under the shadow of prior proceedings.  There is pending litigation

17     which right now is -- exists because of that specific assumption I think

18     that has been between the parties on a number of different occasions,

19     where there have been pre-existing orders made by the Trial Chamber in

20     the first trial that are -- that have been continued in force or have

21     continued to be respected by either the Defence or by the Prosecution

22     with regard to these proceedings.  And I wish to just get some

23     clarification because I do not wish to offend at all.  But, for example,

24     there's a specific disclosure request that we have and that disclosure

25     request was rejected by the Prosecution based upon a pre-existing order

Page 209

 1     from an original -- from the first Trial Chamber.  And I don't want to be

 2     arguing back and forth between -- between the two Trial Chambers if

 3     that's not the case.  So that's why I raise the issue quite gently

 4     because this is an area where perhaps -- perhaps Mr. Rogers and I could

 5     have some agreement, perhaps not, I don't know.  We may still have legal

 6     disagreements, but right now part of the argument that is current as an

 7     argument, it exists with a pre-existing order.

 8             JUDGE MOLOTO:  You want clarity from the Chamber?

 9             MR. GUY-SMITH:  If I -- if I get some kind of just clarifications

10     on that --

11             JUDGE MOLOTO:  [Overlapping Speakers] My recollection of the

12     Rules is that the only continuing order that outlives the Chamber from

13     which it came is an order with respect to protective measures.  And that

14     one will subsist until ordered, varied, or amended by some other Chamber.

15     Any order that is made in a particular trial for purposes of that trial

16     does not in my interpretation of -- or my understanding of the law, does

17     not bind subsequent Trial Chambers.

18             MR. GUY-SMITH:  Very well.  I'm clear --

19             JUDGE MOLOTO:  Except for the kind of thing that comes from

20     appeal and it's a jurisprudential thing that ties your hands.

21             MR. GUY-SMITH:  So apart from any issues concerning res judicata

22     or law of the case I understand that.  Very well.  Thank you very much

23     for that clarification.  I do appreciate it.

24             JUDGE MOLOTO:  You're welcome.  Are you done?  Thank you so much.

25             Mr. Harvey.

Page 210

 1             MR. HARVEY:  I have nothing further today.  Thank you very much,

 2     Your Honours.

 3             JUDGE MOLOTO:  Thank you very much.

 4             Well, there being no further business to conduct, we stand

 5     adjourned to the next trial date, tomorrow in the afternoon, Courtroom I.

 6     Court adjourned.

 7                           --- Whereupon the hearing adjourned at 4.40 p.m.,

 8                           to be reconvened on Thursday, the 18th day of

 9                           August, 2011, at 2.15 p.m.