Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1746

 1                           Thursday, 3 November 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.15 p.m.

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

 6     courtroom.

 7             Mr. Registrar, 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, Mr. Registrar.

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

13     Prosecution.

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

15     the Prosecution, together with Ms. Barbara Goy, Ms. Daniela Kravetz, and

16     our case manager today, Ms. Line Pedersen.

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

18             And for Mr. Haradinaj.

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

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

21             JUDGE MOLOTO:  Thank you, Mr. Emmerson.

22             And for Mr. Balaj.

23             MR. GUY-SMITH:  Gregor Guy-Smith on behalf of Idriz Balaj,

24     together with Ms. Colleen Rohan and Mr. Chad Mair.

25             JUDGE MOLOTO:  Thank you so much.


Page 1747

 1             And for Mr. Brahimaj.

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

 3     together with Paul Troop, Luke Boenisch, and Rudina Jasini.

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

 5             May the Chamber please move into closed session.

 6                           [Closed session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

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

18             And, Mr. Witness, again I know you know this but it is still my

19     duty to remind you that you are still bound by the declaration you made

20     at the beginning of your testimony to tell the truth, the whole truth,

21     and nothing but the truth.  You remember that?

22             THE WITNESS: [Interpretation] Yes.

23                           WITNESS:  75 [Resumed]

24                           [Witness answered through interpreter]

25             JUDGE MOLOTO:  Thank you very much.


Page 1748

 1             Mr. Harvey.

 2             MR. HARVEY:  Thank you, Your Honours.

 3                           Cross-examination by Mr. Harvey: [Continued]

 4        Q.   Witness, I want to ask you some questions, first of all, about

 5     the time when you have told the Judges that (redacted) was arrested.

 6     You told the Tribunal that this took place in the spring of 1998; do you

 7     recall that?

 8        A.   Yes.

 9        Q.   Do you remember a time in the spring of 1998 when there was a

10     Serb offensive that began against a number of villages in the month of

11     May, around about the 17th to 21st of May?  Do you recall that?

12        A.   No, I can't remember.

13        Q.   Would you -- just thinking back to your life in Kosovo, would you

14     consider that period in the middle of May to be spring; is that what you

15     would call spring?

16        A.   I don't call mid-May spring.  Spring starts in March and

17     continues for three months.

18        Q.   And do you have any clear recollection now, sir, whether you

19     think (redacted) was arrested, as you put it, in March or April or May

20     or June?

21        A.   I can't remember the month, but I remember that the leaves had

22     just begun to show on the trees.  That's all I remember.

23        Q.   And you said that you visited (redacted) about four or five

24     times in Jabllanice; is that correct?

25        A.   I went to see him three or four times, once on my own.  This was


Page 1749

 1     the first time and I wasn't able to see him.  Then I went together with

 2     (redacted) two times.  That's all, I think, three or four times.

 3        Q.   Well, in fairness to you, Witness, at transcript page 857,

 4     line 12, you did say then that you were there to visit (redacted) four

 5     times, five times maybe.  Is it hard to remember today?

 6        A.   I'm sure that I've been there three times, but maybe I went

 7     another time to see him.  It's been 13 or 14 years since then.  I've

 8     forgotten, but I'm sure I went there three times.

 9        Q.   And the first time that you went you said was -- the first time

10     you visited him was a month after you say he was arrested; correct?

11        A.   Yes.

12        Q.   And then again you say you went about a week after that?

13        A.   A week or two, something like that.

14        Q.   And then you would agree there were at least one and possibly two

15     more visits after that, and were they each a week or two apart?

16        A.   Yes, a week or two between them, but I can't remember exactly.

17     But that's what I think, about a week or two apart.

18             MR. HARVEY:  Now may we go into private session, please.

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

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1750











11 Pages 1750-1779 redacted. Private session.
















Page 1780

 1   (redacted)

 2                           [Closed session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

13             JUDGE MOLOTO:  Thank you, Mr. Registrar.

14             We will take a break and come back at 4.00.  Court adjourned.

15                           --- Recess taken at 3.33 p.m.

16                           --- On resuming at 4.01 p.m.

17             JUDGE MOLOTO:  Mr. Harvey -- I beg your pardon, Mr. Harvey.

18             May we please move into closed session.

19                           [Closed session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 1781

 1   (redacted)

 2   (redacted)

 3                           [Open session]

 4             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

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

 6             Yes, Mr. Harvey.

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13             JUDGE DELVOIE:  Private session, please.

14             MR. HARVEY:  I'm sorry, I didn't realise we were not in private

15     session.

16             JUDGE MOLOTO:  May we move to private session, please.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

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

25     you.


Page 1782

 1             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.

 2             Mr. Registrar, will you please give that -- those documents an

 3     exhibit number.  They are admitted into evidence.

 4             Yes, Mr. Harvey -- oh, wait a minute, Mr. Registrar must give us

 5     an exhibit number first.

 6             THE REGISTRAR:  Your Honours, 65 ter number 03085, pages 12 to

 7     14, shall be assigned Exhibit D193.  Thank you.

 8             JUDGE MOLOTO:  Thank you.

 9             MR. ROGERS:  I think they need to be under seal.

10             JUDGE MOLOTO:  Under seal.

11             THE REGISTRAR:  Yes, Your Honour, under seal.

12             JUDGE MOLOTO:  Thank you so much.

13             Yes, Mr. Harvey.

14             MR. HARVEY:  Yes, also as a matter of housekeeping may I just

15     confirm that, in fact, the documents that were on the screen earlier

16     emanating from the veterans association had, in fact, been disclosed to

17     the Prosecution, I believe, on the 1st of September.  So -- but there was

18     a change in the numbering of the documents which obviously caused some

19     confusion.  However, the documents themselves were disclosed to the

20     Prosecution on the 1st of September.

21             JUDGE MOLOTO:  [Microphone not activated]

22             MR. HARVEY:  Your microphone, please.

23             JUDGE MOLOTO:  My apologies.

24             Have you provided the Prosecution with the correct numbering now

25     so that they can identify them in their documents?

Page 1783

 1             MR. HARVEY:  Yes, Your Honour.

 2             JUDGE MOLOTO:  Thank you so much.

 3             And you confirm, Mr. Rogers?

 4             MR. ROGERS:  Your Honour, it's a little bit confusing.  It

 5     appears that we were notified -- my understanding of the conversation

 6     earlier was that we hadn't been provided with them, but it seems that we

 7     were given a notice.  It was -- the numbers were changed and the

 8     confusion arose there because of the change in numbering and it was --

 9     thought one had been replaced -- it doesn't matter.  We've got them.

10     We've dealt with it.

11             JUDGE MOLOTO:  [Microphone not activated] -- confirm.

12             MR. HARVEY:  I just wish to confirm the infallibility of my case

13     manager, that's all.  If we could --

14             JUDGE MOLOTO:  Give him our congratulations.

15             MR. HARVEY:  Thank you, Your Honour.

16        Q.   Witness, you attended a hearing in front of an immigration judge

17     on the 11th of February, 2008, didn't you?

18        A.   Yes.

19             JUDGE MOLOTO:  Are you happy in open session?

20             MR. HARVEY:  For the moment, yes, Your Honours.

21    Q. During the course of that hearing you were asked again about (redacted)

22     (redacted) and you maintained that he had been killed during the war, didn't

23     you?

24        A.   At the time of the trial I was asked very few questions.  My

25     solicitor spoke on my behalf.

Page 1784

 1        Q.   Witness, the question is a simple one.  You were asked during

 2     that hearing about (redacted) and you said he was killed during the

 3     war.  Yes or no, did you say that?

 4        A.   Yes, yes, I did.

 5        Q.   And in that hearing you had taken an oath, just as you did when

 6     you came in here today or -- and made the declaration, or, on the

 7     previous occasion when you made the declaration, that you would tell the

 8     truth, the whole truth, and nothing but the truth.  You did that then as

 9     well, didn't you?

10        A.   Yes, I did.

11        Q.   And, in fact, you told a lie, didn't you?

12             JUDGE MOLOTO:  Mr. Harvey.

13             MR. HARVEY:  Yes, Your Honour.

14             JUDGE MOLOTO:  I'm sure there are less demeaning terms that can

15     be used to -- and still achieve the same objective.

16             MR. ROGERS:  Your Honours, I'm also conscience that we are in --

17     first of all, we are in open session.  This is dealing with the content

18     of a hearing in the other country.  Secondly, what Mr. Harvey is inviting

19     the witness to answer to clearly must give rise to a question of

20     privilege against self-incrimination, it just must, given the answers

21     that we've already received.  So could I invite us, first of all, to

22     return into private session --

23             MR. GUY-SMITH:  Well --

24             MR. ROGERS:  Can I finish?

25             MR. GUY-SMITH:  -- first of all, once again, I don't think this

Page 1785

 1     is an area in which the witness would be identified by the questions

 2     being asked.  And I would object to us going into private session at this

 3     point on that basis.  And second of all, considering the concerns raised

 4     by Mr. Rogers, I wonder whether or not he's asking that the Court

 5     admonish the witness at this time with regard to any privilege of

 6     self-incrimination that he may have, because if he's going to admit to

 7     having lied, the consequences of any potential criminal proceedings

 8     against him in another country may or may not be something of concern.

 9     And I'm not sure necessarily whether or not any of us are in a position

10     to advocate or not advocate for him in that regard.  But certainly --

11     well, I'm sure we're all mindful of that.

12             JUDGE MOLOTO:  Obviously the Chamber can warn the witness, but I

13     suppose without warning we would have to go -- an appointment of counsel

14     to advise the witness, sit next to him and advise him on what he may or

15     may not answer.  While you do say, Mr. Guy-Smith, that the consequences

16     of what he says here may or may not have repercussions in the other

17     country, I do think out of an abundance of caution we -- it would be

18     preferable to stay in private session when we do discuss this,

19     irrespective of how the witness is going to answer.  And I invite

20     particularly you, Mr. Harvey, and you, Mr. Guy-Smith, having objected, to

21     comment on that view.

22             MR. HARVEY:  Well, Your Honours, it's entirely a matter for you.

23     I was trying to keep as much of this in public session as possible

24     because virtually I think every question I've asked so far today has been

25     in private session and that always makes me acutely uncomfortable.


Page 1786

 1             JUDGE MOLOTO:  I understand.  But you just happen to be on that

 2     terrain again which, in my view, does call for private session.

 3             MR. HARVEY:  Well, I'm in Your Honour's hands.

 4             JUDGE MOLOTO:  If you're in the Honours' hands then may the

 5     Chamber please move into private session.  Before we go to private

 6     session I would like to clear the first point on admonishing the witness

 7     and advising him of the possibility of getting counsel which might

 8     precipitate an adjournment right now.

 9             MR. HARVEY:  Again, I am in Your Honour's hands.  I didn't raise

10     the question.  Mr. Rogers raised the question.  It is certainly something

11     that he might need to think about.

12             JUDGE MOLOTO:  Okay.

13             May the Chamber please move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1787











11 Pages 1787-1792 redacted. Private session.
















Page 1793

 1   (redacted)

 2   (redacted)

 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   (redacted)

25                           [Closed session]


Page 1794

 1   (redacted)

 2   (redacted)

 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                           [Open session]

17             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

18             JUDGE MOLOTO:  Thank you very much.

19             Yes, Mr. Emmerson.

20             MR. EMMERSON:  Your Honour, I would like, if I may, just to take

21     a moment and pause and reflect on where we're going in these proceedings,

22     in particular on the scheduling and the pace at which the Prosecution

23     case is being presented.  We sat four days in the last session.  We are

24     sitting four, possibly five days in this session.  Both of those short

25     falls were as a result of the unavailability of Prosecution witnesses to


Page 1795

 1     meet preordained dates set very well in advance.  We are proceeding at

 2     what can fairly be called a snail's pace in this prosecution and I know

 3     that the Trial Chamber is very, very acutely aware of the rights of the

 4     accused to a trial which is efficient and expeditious.

 5             Witness 81 and possibly Witness 80 are the only two remaining

 6     witnesses in this case.  The status as regards Witness 80 remains an open

 7     question.  Witness 81 was due to be called last week.  Without any

 8     explanation having been given - and I don't know whether the

 9     Trial Chamber has seen anything ex parte or confidentially that hasn't

10     been shown to the Defence - but we have certainly seen no explanation

11     that is capable of justifying what took place during this session,

12     namely, the fact that a witness who was scheduled to be here simply

13     wasn't brought.

14             But the position is that we remain gravely concerned that this

15     matter is not proceeding at a pace which meets this own Tribunal's

16     expectations of expeditious trial.  And that's obviously a matter of

17     great concern, particularly - and I'm saying this on behalf of my

18     client - to a man who's been in custody for a very, very considerable

19     period of time.  And it was with great concern that we learned that the

20     Trial Chamber had issued a Scheduling Order for February of next year,

21     suggesting that that might be available to the Prosecution to continue to

22     complete its evidence in this case.

23             JUDGE MOLOTO:  Or the Defence to open its case --

24             MR. EMMERSON:  Well, that's not the way that the order was

25     expressed.  The 21st of November is the next sitting schedule.  I have

Page 1796

 1     already had cause to address you as to the concerns that we have about

 2     Witness 81, about what we perceive to be the manipulation of this

 3     Tribunal by Witness 81 in collaboration with his handlers from a certain

 4     state --

 5             MR. ROGERS:  Your Honour, that is an extremely serious allegation

 6     to be making in public and open session.  And I hope that my learned

 7     friend has real back-up for that allegation.

 8             MR. EMMERSON:  Yes, I do.

 9             MR. ROGERS:  It may be he does in due course --

10             MR. EMMERSON:  Yes, I do.

11             MR. ROGERS:  -- but he should be aware of the seriousness of that

12     allegation against a sovereign state.

13             MR. EMMERSON:  I am very well aware of the seriousness of the

14     allegation.

15             MR. ROGERS:  As long as he is.

16             MR. EMMERSON:  I am very well aware of the seriousness of the

17     allegation.  This is a witness who as Your Honours know come from a state

18     not disinterested so far as these proceedings are concerned.  I addressed

19     Your Honours on a previous occasion about the fact that this witness had

20     made a series of witness statements in which the vault-fast changes in

21     his account were inexplicable on any reasonable and credible basis.  What

22     we know is that at each session where those statement breaks took place

23     he was in the care of officials from the state concerned.  We also know

24     that he has requested and they have requested that his attendance at this

25     Tribunal should be in the company of those who have handled him within

Page 1797

 1     the officials of that state and an armed escort from the officials of

 2     that state.  There really comes a point where given that he was due to be

 3     here on this occasion and without adequate explanation his attendance has

 4     been cancelled, there comes a point where enough is enough.  And we would

 5     invite Your Honours to say that the Prosecution must conclude its case in

 6     the next sitting session.  We have two weeks set aside.  That is more

 7     than sufficient to hear the evidence of Witness 81 and to be clear and if

 8     necessary to hear the evidence of Witness 80.  But to even contemplate

 9     the possibility that a trial, which has proceeded at such a lackadaisical

10     case from the Prosecution's point of view, might spill over into February

11     of next year with the Prosecution being permitted with this Tribunal to

12     keep its case open on that basis with effectively no judicial control

13     over the way the Prosecution is managing the proceedings would, we

14     respectfully submit, be an unacceptable state of affairs.  They've had

15     plenty long enough to get their act together.  That witness should have

16     been here on the last occasion.  Witness 3 should have been here on the

17     occasion before.  And there comes a point, as we respectfully submit,

18     where enough is enough.  Witness 81 must, we submit, be called, if he's

19     to be called at all, on the 21st of November with no further adjournments

20     being granted to the Prosecution to keep its case open, and that's a

21     request which is made in the interests of efficient and expeditious

22     administration of justice as well as in the interests of the individual

23     accused.  It's a -- it's a pretty parlous state of affairs where over the

24     course of two sitting sessions we've managed to get in four days of

25     evidence.  Your Honour, those are my submissions.

Page 1798

 1             JUDGE MOLOTO:  Thank you, Mr. Emmerson.

 2             Let me, before I say whatever I want to say, just assure you that

 3     the Chamber is as equally concerned if not more concerned about the pace

 4     at which the trial is going.  At the same time, I want to say to you, you

 5     do understand that we are sitting here in a re-trial which is -- was

 6     occasioned by the fact that allegedly - and I'm taking no sides on the

 7     point, even though it may be adjudicated - allegedly the first trial was

 8     not given -- the Prosecution was not given enough opportunity to bring

 9     its witnesses.  And it has been the effort of this Chamber to try and

10     make sure that we don't go into a further re-trial or a second re-trial

11     simply because the this re-trial is said also not to have given an

12     opportunity for people to give their evidence, in which case your clients

13     will be here even for much longer.  Okay.

14             MR. EMMERSON:  I -- I'm sorry.

15             JUDGE MOLOTO:  And I know you are saying what you are saying

16     about Witness 81.  Yes, we haven't got any explanation as to why he's not

17     here or if we have it, it may be I'm remiss.  I probably have not seen

18     it.  But I -- you rise because of this adjournment.

19             MR. EMMERSON:  That -- I'm sorry if -- I should just correct that

20     impression.  I certainly don't rise because of this adjournment.  I

21     simply rise because this is a convenient moment, at the end of this

22     session potentially and because I shan't be capable of being in court

23     tomorrow.  So I'm rising at this stage because it's an issue that I

24     thought to raise during this session.  I didn't want to take up time that

25     could have been usefully used in the hearing of evidence.  We now have a

Page 1799

 1     hiatus and that's why I'm raising it now --

 2             JUDGE MOLOTO:  Okay.  My apologies to you then if I assumed your

 3     motives.

 4             MR. EMMERSON:  No, no, clearly what has happened now is an

 5     inevitable consequence of the course of events that this witness's

 6     testimony has taken.  That's the sort of hiatus in a trial which is

 7     unavoidable.  What has been going on outside the context of this

 8     witness's evidence is not a hiatus that is avoidable.  It's an

 9     all-together lackadaisical approach to the Prosecution of the

10     proceedings.  And can I simply say this in response, Your Honour, that

11     we're obviously reassured and grateful, and I'm sure the public and the

12     defendants will be reassured and grateful, to hear that the Trial Chamber

13     shares our concerns about the pace of these proceedings --

14             JUDGE MOLOTO:  We really do.  We do.

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 1800

 1     opening the case is the only witness of any potential relevance in

 2     relation to Mr. Haradinaj and we are being faced with a situation where a

 3     witness who is effectively being controlled by the authorities of a

 4     partisan state to these proceedings and is under the physical control in

 5     all his contacts with the Prosecution of the officials of that state,

 6     whose evidence itself in the course of the communications with the

 7     Prosecution has twisted and turned like a snake on a stick, and who we're

 8     now told isn't being brought to these proceedings after having previously

 9     indicated that he wished to be brought and accompanied throughout by his

10     minders.  Well, he was with his minders when the twists and turns that

11     will reveal him to be to Your Honours a witness on whom one would not

12     hang a cat, he was returning to his minders on each occasion.  We have,

13     as Your Honours know, an outstanding application for disclosure in

14     respect of the entirety of the communication between those officials who

15     have been handling this witness and the witness himself, and for

16     Your Honours to get to grips in due course with how this witness's

17     testimony has been manipulated --

18             MR. ROGERS:  Your Honour --

19             MR. EMMERSON:  -- that ruling will in due course need to be

20     available.  I'm sorry, I give way to Mr. Rogers.

21             MR. ROGERS:  Your Honour, we need to go into private session,

22     please.

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

24                           [Private session]

25   (redacted)

Page 1801











11 Pages 1801-1802 redacted. Private session.
















Page 1803

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

11             JUDGE MOLOTO:  Thank you very much.

12             You made the point, Mr. Emmerson, that the Appeals Chamber

13     ordered a re-trial because of the failure of certain two witnesses to

14     testify and that those two witnesses have come and gone without

15     testifying -- and haven't testified, and that therefore the whole

16     rationale - I'm paraphrasing you - of the re-trial is virtually bridge

17     under the water.  That might be so on a particular interpretation, but if

18     we bear in mind that it was within the powers of the Appeals Chamber to

19     send the case back to the original Chamber and ask that the two witnesses

20     be heard and yet it didn't do so, it decided to go on a re-trial.  It

21     cannot then be said that the whole rationale for the re-trial is bridge

22     under the water.  That's all I wanted to say.  But having said that, the

23     Chamber takes on board all the points you make and at the risk of

24     nauseating, I just want to repeat that the Chamber is equally concerned

25     about the pace at which the trial is going and it would like to see the


Page 1804

 1     pace picking up a little bit.

 2             MR. EMMERSON:  Can I make it clear then that if there is any

 3     application for the Prosecution to continue its case beyond the next

 4     sitting session that will be very firmly opposed.

 5             MR. ROGERS:  Your Honour, it's not an issue of any application.

 6     There's already a Scheduling Order so there's already a period of time

 7     which has been made available.  Secondly, Mr. Emmerson stands and says

 8     that there was no explanation.  There was an explanation.  It was sent on

 9     the 18th of October.  And part of the reason why we organised the timing

10     we did was, in fact, to suit and assist Mr. Emmerson personally; that's

11     part of the reason in the initialling scheduling where we arranged to

12     have the Witness 81 brought early and then Witness 3 in the second week,

13     to assist him.  Unfortunately that wasn't possible.

14             Secondly, Mr. Guy-Smith wrote and inquired as to whether or not

15     we would be in a position to proceed with Witness 81 for this -- this

16     particular session, significantly because there is a lot of outstanding

17     litigation relating to him.  And until that is resolved, there was a real

18     danger that we would not be able to proceed with him.  Given the

19     particular arrangements that need to be made in relation to him, we

20     didn't want that to happen with outstanding litigation relating to him.

21     And that was also indicated in the e-mail, that I agreed with

22     Mr. Guy-Smith that it would be difficult to proceed and so we rearranged

23     Witness 3 to come for the second week and vacated the three weeks.  An

24     additional concern was, of course, that when we first intended to deal

25     with this two-week sitting period, we had only lost one day.

Page 1805

 1     Your Honours had pressing judicial other business which took the second

 2     day of the first week leaving us with three days and then five days which

 3     shortened the period of time needed to deal with Witness 81 which we

 4     estimated would be five or six days.  Mr. Emmerson had a particular

 5     problem with, in fact, today originally.  It appears he's managed to

 6     rearrange himself for that, and that is one of the reasons why we tried

 7     to rearrange the sitting period in the way we did to assist him to be

 8     here when this important witness was testifying.

 9             So there are some reasons as to why we are in the position that

10     we are in at the moment.  And, of course, so far as the other witness is

11     concerned, we have repeatedly tried to deal with him in a number of

12     different ways and the course of action that has been alighted upon is

13     the one that we know and we have to see that through to its natural

14     conclusion, so that is what we're trying to do.  We see no difficulties

15     with Witness 81 testifying in the next sitting period and that will, we

16     hope, in that two-week period will be concluded.  In relation to the

17     other witness, well, we're -- I can't answer for that right now.  I

18     understand Mr. Emmerson's concern --

19             JUDGE MOLOTO:  Nobody can.

20             MR. ROGERS:  Nobody can, and I suspect that's why Your Honours

21     prudently identified the future date so that everybody was aware, and, of

22     course, I'm also aware of the many other pressing judicial difficulties

23     that Your Honours have with other cases in this Tribunal, and it's

24     difficult balancing everything out and everyone's doing the best they

25     can.  But we are aware of Mr. Emmerson's concerns and I think everyone's

Page 1806

 1     trying to do their best.

 2             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

 3             Yeah, indeed, there are issues, some of which are beyond the

 4     control of other -- of all of us here which take their own course and we

 5     cannot control.  And I thought I was going to -- we are going to come to

 6     an end, but I see Mr. Guy-Smith has risen.

 7             MR. GUY-SMITH:  Yes, I am rising only because assuming for

 8     purposes of this discussion that we are able to conclude some of the

 9     pending litigation, much of which would not have had to have occurred but

10     for the view that the Prosecution took with regard to Witness 81, there

11     still remains an issue which is outstanding which is an ex parte request

12     that we have made and we have yet to receive any response whatsoever from

13     the self-same state that is handling Witness 81.  So in the absence of

14     there being some rapid response from - and I'll use the term

15     generically - Witness 81's handlers, we could well be put in the same

16     position again because we won't have the information we have requested,

17     and it causes some great concern because the fact of the matter is

18     issues -- irrespective of any problems with Witness 80, issues concerning

19     Witness 81 have been going on now for months and months and months.

20             JUDGE MOLOTO:  I hear what you say and I hear what you say about

21     the request you made.  You can rest assured that to the extent that the

22     Chamber is able to follow that up, it is doing that.  And we are doing

23     that within the time-limits that -- we've got to give the time-limits,

24     you know --

25             MR. GUY-SMITH:  I understand, Your Honour.

Page 1807

 1             JUDGE MOLOTO:  Thank you so much.  As long as you do.

 2             I'm not quite sure that much is being gained by going deeper into

 3     this discussion.  We have heard the points that are being made and there

 4     are several explanations for the delays, but we are all concerned.  And

 5     I'm sure everybody in this court is concerned to get this case finished

 6     as soon as possible.  If there was anybody who is not so concerned, let

 7     him or her raise his hand.  I don't think there would be.  And we've all

 8     heard and we will do our best, each one of us, in that regard.

 9             If there is -- are we in private session?  Yes.  No, we're in

10     open session.  Okay.

11             If there is nothing else to be raised, we will stand adjourned to

12     tomorrow at 9.00 in the same courtroom.  Court adjourned.

13                           --- Whereupon the hearing adjourned at 4.57 p.m.,

14                           to be reconvened on Friday, the 4th day of

15                           November, 2011, at 9.00 a.m.