Tribunal Criminal Tribunal for the Former Yugoslavia

Page 318

 1                           Friday, 19 August 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.17 p.m.

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

 6     courtroom.

 7             Madam Registrar, will you please call the case.

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

 9     number IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj,

10     Idriz Balaj, and Lahi Brahimaj.

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

12             Could we have the appearances for the day, please, starting with

13     the Prosecution.

14             MR. ROGERS:  Yes, Your Honour, Paul Rogers appearing for the

15     Prosecution, together with Ms. Priya Gopalan and our case manager today,

16     Mr. Colin Nawrot.

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

18             And for the Defence.

19             MR. EMMERSON:  Ben Emmerson for Ramush Haradinaj together with

20     Rodney Dixon, Annie O'Reilly, and Andrew Strong.

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

22             For Mr. Balaj.

23             MR. GUY-SMITH:  Gregor Guy-Smith and on behalf of Mr. Balaj with

24     Ms. Rohan and Mr. Mair.

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

Page 319

 1             And for Mr. Brahimaj.

 2             MR. HARVEY:  Good afternoon, Your Honour.  Richard Harvey,

 3     together with Paul Troop, Sophie Rigney, Luke Boenisch, and

 4     Ms. Rudina Jasini for Mr. Brahimaj.

 5             JUDGE MOLOTO:  Thank you so much.

 6             Mr. Rogers.

 7             MR. ROGERS:  Your Honours, we've reached the stage where

 8     Mr. Kabashi is due to be called.  As I have indicated to the Chamber and

 9     all the parties, Mr. Karnavas spoke to me after the first appearance of

10     Mr. Kabashi today in the contempt matter, and instead of saying what he

11     told me, might I invite him to come into the courtroom to address

12     Your Honours directly on the matters that he wishes to raise relating to

13     his views about whether his client should be testifying this afternoon.

14             JUDGE MOLOTO:  [Microphone not activated]

15             I have been speaking for some time without a microphone.  Can I

16     repeat myself.  I was saying it might not be necessary to call him in to

17     come and give an explanation.  Let's first hear what the other parties

18     have to say, and I'm asking Mr. Emmerson to please start.

19             MR. EMMERSON:  Your Honour, I'm not sure whether you're asking me

20     to respond to the request that the matter be postponed until Monday at

21     this stage, but obviously I have not heard the request articulated or the

22     reasons for it.  I would have thought, respectfully, it might be an idea

23     to have Mr. Karnavas into court just to explain the position.

24             JUDGE MOLOTO:  Well, I thought Mr. Rogers indicated that he sent

25     a message to everybody --

Page 320

 1             MR. EMMERSON:  Yes, no, I'm sorry, I've seen --

 2             JUDGE MOLOTO:  -- about what happened, and therefore I would have

 3     expected that you might be having a position --

 4             MR. EMMERSON:  Well, I've seen Mr. Rogers' letter.  Obviously

 5     he's conveying what it was that Mr. Karnavas had to say.  I apprehended

 6     that Your Honours might wish to hear Mr. Karnavas briefly, he's just

 7     outside the courtroom to explain the position.  I can tell you now that

 8     assuming what he says is effectively the same as what Mr. Rogers has said

 9     in his letter, we will be taking a neutral position and leaving it to the

10     Tribunal to decide how to approach the matter.  I understand that

11     Mr. Kabashi is here in the building.

12             JUDGE MOLOTO:  Your position, Mr. Guy-Smith.

13             MR. GUY-SMITH:  Based on the representations that were made in

14     Mr. Rogers' e-mail earlier today, coupled with the representations that I

15     saw Mr. Karnavas make over the internet, or whatever you call it,

16     whatever you call this newfangled --

17             JUDGE MOLOTO:  Over the movie.

18             MR. GUY-SMITH:  Over the movie.  My position is two-fold.  I

19     recognise the relationship between a lawyer and the client and I

20     recognise the importance of human decency, and I am willing to accede to

21     Mr. Karnavas' request if it remains what I believe it to be.

22             JUDGE MOLOTO:  Mr. Harvey.

23             MR. HARVEY:  Your Honour, I haven't seen the moving-picture

24     image, but I have spoken with Mr. Karnavas directly and I do understand

25     his position in respect of his client and I leave the matter respectfully

Page 321

 1     in the hands of the Chamber.

 2                           [Trial Chamber confers]

 3             JUDGE MOLOTO:  Okay.  Thanks for the positions that we got from

 4     the parties.

 5             May Mr. Karnavas please be brought in just for a complete record.

 6             Indeed, please do.  Welcome, Mr. Karnavas.

 7             MR. KARNAVAS:  Good afternoon, Mr. President, good afternoon,

 8     Your Honours, and good afternoon to everyone in and around the courtroom.

 9             JUDGE MOLOTO:  Yes, Mr. Karnavas, Mr. -- you're coming here at

10     the invitation of the Prosecution.

11             MR. KARNAVAS:  Yes.

12             JUDGE MOLOTO:  The Prosecution has indicated that you have

13     something to tell the Chamber.

14             MR. KARNAVAS:  Yes.

15             JUDGE MOLOTO:  About your client.

16             MR. KARNAVAS:  Yes.  I did inform the Defence yesterday, it

17     was -- that most likely my client would not be able to testify today

18     because of him being caught in this Dutch system which nobody seemed to

19     know, at least on the Netherlands' side, you know, what to do until

20     yesterday afternoon.  And because I was not able to meet with my client

21     to at least discuss his testimony and to get him mentally prepared for

22     the Court, I informed them that in all likelihood it would be on Monday.

23     Today I met with my client because we had a hearing.  I've discussed the

24     matter with Mr. Kabashi about testifying.  It was his wish that he meet

25     with me to discuss his testimony, particularly in light of the fact that

Page 322

 1     he has these counts pending and his performance in this particular court

 2     may impact how that situation will be resolved or any potential future

 3     situations that may arise in this courtroom.  And I did inform Mr. --

 4     Judge Orie, in fact, that I would be bringing to this Trial Chamber's

 5     attention the fact that he is not in the shape -- he is psychologically

 6     not capable and he's physically exhausted, physically exhausted.  And

 7     frankly, I think it would be a miscarriage of justice to force him to

 8     testify today, given that he hasn't slept in the last couple of days, he

 9     hasn't had access to his lawyer, and that no one will be prejudiced if he

10     testifies on Monday.

11             I was scheduled to meet with him between 1.00 and 4.00 this

12     afternoon at the UNDU.  Regrettably, that now has changed.  Efforts have

13     been made by all there for me to meet with him later this evening, and

14     I'm now also making efforts to see whether the UNDU would allow me to

15     meet with him tomorrow, which is slightly unusual, but I'm hopeful that

16     between OLAD and perhaps the Trial Chamber the UNDU would allow me to

17     meet with Mr. Kabashi so that Monday morning, 9.00, he's here and he's

18     ready and able to give evidence.

19             JUDGE MOLOTO:  Thank you so much, Mr. Karnavas.  You may be

20     seated.

21             MR. KARNAVAS:  Thank you.

22             JUDGE MOLOTO:  I don't expect anybody wants to cross-examine

23     Mr. Karnavas.

24             MR. GUY-SMITH:  I -- well, as a matter of fact, Your Honour ...

25             No, but I would make one brief comment, which is as follows,

Page 323

 1     which is to the extent that the Chamber can be of any assistance to

 2     Mr. Karnavas in terms of the relationship that he has with the Detention

 3     Unit, UNDU, for a Saturday visit, I would strongly encourage that so that

 4     we don't run into a problem next week of him not having had the

 5     opportunity to meet with Mr. Kabashi because sometimes people are very

 6     jealous about the way they treat their weekends.

 7             JUDGE MOLOTO:  Thank you very much for that, Mr. Guy-Smith, and

 8     I'm sure Mr. Karnavas is perfectly capable to make appropriate

 9     representations to any relevant authorities for further assistance if he

10     does need any.  Thank you so much.

11             That's -- that being that, then I suppose we accept what has been

12     said and we'll stand adjourned to Monday - are we sitting in the morning

13     or the afternoon, in the morning at 9.00.

14             MR. ROGERS:  Your Honours, before we rise there are just a few

15     small housekeeping matters that Ms. Gopalan can deal with, a number of

16     small oral applications that my learned friends have been notified we

17     would make.  So perhaps she can make those and we can try to tidy away

18     some loose ends and feel we have achieved something perhaps in the course

19     of this afternoon.

20             JUDGE MOLOTO:  In that event, Mr. Karnavas, you are excused.

21             MR. KARNAVAS:  Thank you, Mr. President.  Thank you, Your

22     Honours.

23             JUDGE MOLOTO:  You're welcome.

24             Yes, Ms. Gopalan.

25             MS. GOPALAN:  Good afternoon, Your Honours.

Page 324

 1             JUDGE MOLOTO:  Good afternoon, ma'am.

 2             MS. GOPALAN:  I'm here to make an oral application for the

 3     admission of the evidence of three witnesses who are scheduled to testify

 4     in the remaining sitting period, it's an oral application for the

 5     admission of their evidence in written form into the trial record.  The

 6     first one is Witness 79.  She's scheduled to testify sometime next week.

 7     We have been in e-mail contact with the Defence and they do not require

 8     her -- for her to attend for cross-examination.  If Your Honours recall,

 9     this witness was mentioned in your decision dated 22nd of July and you

10     had asked for her to appear for cross-examination; however, the parties

11     are in agreement that she does not require to attend for

12     cross-examination.  So I ask that her written statement be entered into

13     evidence.

14             JUDGE MOLOTO:  Ma'am, you said her written statement.  Is it

15     92 bis?  92 ter?

16             MS. GOPALAN:  It's a 92 bis statement.

17             JUDGE MOLOTO:  92 bis.

18             MS. GOPALAN:  Yes.

19             JUDGE MOLOTO:  Thank you so much.  Can we --

20             MS. GOPALAN:  I can --

21             JUDGE MOLOTO:  Go ahead.

22             MS. GOPALAN:  I could read out the 65 ter number, if it pleases

23     Your Honours.

24             JUDGE MOLOTO:  Maybe for the Registrar's sake, yes, please go

25     ahead.

Page 325

 1             MS. GOPALAN:  The 65 ter number is 03042.

 2             JUDGE MOLOTO:  Okay.  Okay.

 3             MS. GOPALAN:  Now, moving on to the remaining witnesses, there

 4     are two of theme Mijat and Dragoslav Stojanovic.  We have also been in

 5     contact with the Defence about the two of them, and all three Defence

 6     teams have agreed that these witnesses will not be required to attend to

 7     give additional testimony.  And so this is an oral application for the

 8     admission of the --

 9             JUDGE MOLOTO:  And they are also 92 bis?

10             MS. GOPALAN:  They are also 92 bis, that's right.

11             JUDGE MOLOTO:  Okay.  Thank you very much.

12                           [Trial Chamber confers]

13             JUDGE DELVOIE:  Those three witnesses, they testified in the

14     first trial I suppose?

15             MS. GOPALAN:  Two of them --

16             JUDGE DELVOIE:  Two of them, two of them.

17             MS. GOPALAN:  Two of them did, Your Honours.

18             JUDGE DELVOIE:  And did they testify -- was that a viva voce

19     testimony?

20             MS. GOPALAN:  That's right.

21             JUDGE DELVOIE:  And the third one?

22             MS. GOPALAN:  And the third one, as I recall, there was a written

23     statement, but that was not part of the initial trial record.

24             MR. DIXON:  Your Honour, I can assist, I can clarify that that

25     statement -- there was an application made under 92 bis to have it

Page 326

 1     admitted, but it wasn't admitted by the previous Trial Chamber.  So it

 2     wasn't on the record.  So as things stand we're only talking about a

 3     statement for that witness.  There was no testimony.  And as we've

 4     indicated in our e-mail, there's no objection to that statement.  But

 5     with regards the other two witnesses, they both did give testimony and

 6     were cross-examined and there are associated exhibits with their

 7     testimony as well.  And there's no objection to their previous statements

 8     but in addition to that their previous testimony, including the

 9     cross-examination and all the associated exhibits, being admitted into

10     evidences.

11             JUDGE DELVOIE:  Thank you.

12             MS. GOPALAN:  Your Honours, if I may, what I was proposing to do

13     in relation to the two witnesses, Mijat and Dragoslav Stojanovic was to

14     circulate to the Defence a complete list of the testimony and the

15     associated exhibits so that the parties may -- that they may view the

16     material and then we would seek the admission of all that material into

17     evidence based on the agreement of the parties.

18             JUDGE MOLOTO:  But, Madam Gopalan, if I understand Mr. Dixon

19     correctly, it looks like they've had sight of all that material, that's

20     why he's asking -- he's saying that all that material can be -- there's

21     no objection to all that material being tendered.

22             MR. DIXON:  There isn't any objection, but we should just be sure

23     what material we are talking about and ensure that all the associated

24     exhibits, both as introduced by the Prosecution and the Defence are part

25     of that category of material.  So if we could have an opportunity with

Page 327

 1     the Prosecution just to confirm that and then that material could all be

 2     conveyed to the Trial Chamber for admission by agreement.

 3             JUDGE MOLOTO:  Okay.  It does seem as if that -- your application

 4     is a little premature with respect to those two because it doesn't look

 5     like they're -- the parties are at ad idem as to what actually should go

 6     in just yet, not that there is an objection, but just that they want to

 7     make sure.  So if you can sort that out so by the time you make that

 8     application you are able to tender those documents.

 9             MS. GOPALAN:  I'm grateful, Your Honours.

10             JUDGE MOLOTO:  Thank you very much.  And with respect to the

11     statement -- I recognise you, Mr. Guy-Smith.

12             MR. GUY-SMITH:  Very well.

13             JUDGE MOLOTO:  And with respect to the statement, the other

14     witness.

15             MS. GOPALAN:  Yes.

16             JUDGE MOLOTO:  That one you seek to tender it now?

17             MS. GOPALAN:  I seek the admission of that statement into

18     evidence.

19             JUDGE MOLOTO:  Now?

20             MS. GOPALAN:  I seek to tender it now.

21             JUDGE MOLOTO:  Okay.  Fine.

22             With respect to that, Mr. Dixon or Mr. Emmerson, what is the

23     response to that?  Can you confirm the [Overlapping speakers] --

24             MR. DIXON:  As we've indicated in our previous e-mails, there's

25     no objection --

Page 328

 1             JUDGE MOLOTO:  Thank you.

 2             MR. DIXON:  -- to that statement being admitted.

 3             JUDGE MOLOTO:  Mr. Guy-Smith.

 4             MR. GUY-SMITH:  Thank you, Your Honour.  With regard to the

 5     statement, there's no objection to its admission.  With regard to the two

 6     witnesses who have testified, in terms of the body of information that is

 7     going to be presented to the Chamber, I trust that information includes a

 8     verbatim copy of the video testimony of their testimony so that the

 9     Chamber is in a position if they wish to, to have that information

10     available for determining such things as the way they looked, how they

11     responded, since there will be issues with regard to demeanour, obviously

12     credibility and reliability of their testimony.

13             JUDGE MOLOTO:  Given that the parties are going to go through

14     what has to go in, I guess you will raise that at that meeting.

15             MR. GUY-SMITH:  I am, but I am putting down a marker because I --

16     it's coming up and I think it's an important thing that the Chamber has

17     in its mind.

18             JUDGE MOLOTO:  Thank you very much.

19             Mr. Harvey.

20             MR. HARVEY:  Your Honour, I adopt what Mr. Guy-Smith just said,

21     but in addition to that I say we have no objection, as we've already

22     indicated to the Prosecution, to the testimony of Witness 79 going in for

23     what little use it may be to the Trial Chamber because it is very

24     substantially hearsay.

25             JUDGE MOLOTO:  Thank you.  Thank you, Mr. Harvey.

Page 329

 1             MR. HARVEY:  Thank you.

 2             JUDGE MOLOTO:  The 65 ter number you gave, was it in respect to

 3     the one statement that you want --

 4             MS. GOPALAN:  That's correct, Your Honours.

 5             JUDGE MOLOTO:  -- to tender.  Okay.

 6                           [Trial Chamber confers]

 7             JUDGE MOLOTO:  Sorry about that.  Okay, then the statement is

 8     admitted into evidence.

 9             MS. GOPALAN:  Your Honours, may I request that it's admitted

10     under seal since it pertains to a protected witness.

11             JUDGE MOLOTO:  Oh, it's admitted under seal.

12             Yes, ma'am.

13                           [Trial Chamber and Registrar confer]

14             THE REGISTRAR:  Your Honours, the statement will be Exhibit P1

15     under seal.

16             JUDGE MOLOTO:  Thank you very much, ma'am.

17             MR. GUY-SMITH:  Your Honour, with -- since we are early in these

18     proceedings, with regard to those exhibits that are admitted under seal,

19     where there has been some protection order which the Defence is not privy

20     to the reasons for that protection, we may at some point wish to revisit

21     whether or not it is appropriate for certain documents to be placed under

22     seal in these proceedings.  And I'm raising the point now because I think

23     it's a point that's going to come up in the future again with regard to

24     other statements or other testimony that may take that same form, that

25     being the statement of somebody who is at this point been a protected

Page 330

 1     witness and that protection has been given to them in the absence of the

 2     Defence having information with regard to why that protection was given.

 3     And by that I'm talking about the factual -- the factual information that

 4     was presented to the Chamber ex parte.  Once again, I'm only raising

 5     it -- I'm not at this point asking that anything be done, but I'm raising

 6     the issue because I think it's an issue that could become crystallised in

 7     the relatively near future.

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

 9             MR. GUY-SMITH:  Thank you.

10             JUDGE MOLOTO:  Yes, ma'am.

11             MS. GOPALAN:  Just a moment, Your Honours.

12                           [Prosecution counsel confer]

13             MS. GOPALAN:  Your Honours, nothing more on this matter.

14             JUDGE MOLOTO:  Okay.

15             MS. GOPALAN:  But Mr. Rogers, however, would like to address the

16     Court.

17             JUDGE MOLOTO:  Okay.

18             MR. ROGERS:  Your Honours, forgive me, I'd mean to raise this

19     earlier.  It's about the guide-lines that Your Honours were going to

20     issue, and it occurred to me that we didn't have a finalised version of

21     the guide-lines.  And as we are approaching the first stage at which

22     cross-examination will take place, it would be helpful if the Court could

23     today issue its finalised version of the guide-lines relating to when the

24     Defence must disclose to us the documents that they intend to rely upon

25     for the purpose of cross-examination.

Page 331

 1             JUDGE MOLOTO:  The Chamber is acutely aware of that.

 2             MR. ROGERS:  I'm grateful.  Thank you.

 3             JUDGE MOLOTO:  And is desperately trying to get it out.

 4             MR. ROGERS:  I'm sure it is, Your Honour.  I just was conscious

 5     that today was, in fact, the first day and we hadn't quite bottomed that

 6     one out.

 7             JUDGE MOLOTO:  Sure.

 8             MR. ROGERS:  Thank you.

 9             JUDGE MOLOTO:  Thank you so much.

10             Perhaps the sooner we get out of here, the sooner it might be

11     attended to.

12             Any others, any party?  Mr. Emmerson?  Mr. Guy-Smith?

13     Mr. Harvey?

14             Okay.  Thank you so much.  Then we stand adjourned until Monday,

15     9.00, in the same courtroom.

16                           --- Whereupon the hearing adjourned at 2.42 p.m.,

17                           to be reconvened on Monday, the 22nd day of

18                           August, 2011, at 9.00 a.m.