Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2210

 1                           Monday, 13 February 2012

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.16 p.m.

 5             JUDGE MOLOTO: [Microphone not activated] Thank you.

 6             Good afternoon to everybody in and around the courtroom.

 7             Mr. Registrar, could you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is case number IT-04-84bis-T, the Prosecutor versus

10     Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.

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

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

13     the Prosecution.

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

15     the Prosecution, together with Mr. Aditya Menon, Ms. Daniela Kravetz, and

16     our Case Manager today, Ms. Line Pedersen.

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

18             And for the defence of Mr. Ramush Haradinaj.

19             MR. EMMERSON:  Your Honour, on behalf of Ramush Haradinaj, I

20     appear together with Mr. Rod Dixon, Ms. Annie O'Reilly,

21     Mr. Andrew Strong, and Ms. Kerrie Rowan.

22             JUDGE MOLOTO:  Thank you very much.

23             And for Mr. Balaj?

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

25     Colleen Rohan, Chad Mair, and Finn Lowery on behalf of Idriz Balaj.


Page 2211

 1             JUDGE MOLOTO:  Thank you so much.

 2             And for Mr. Brahimaj.

 3             MR. HARVEY:  Good afternoon, Mr. President, Your Honours.

 4     Richard Harvey assisted by Mr. Paul Troop and Mr. Luke Boenisch.

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

 6             I believe everybody is aware of developments as they have

 7     unfolded up to now -- or perhaps even before we do that, shall we move

 8     into private session.

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23                           [Open session]

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

25             JUDGE MOLOTO:  Thank you so much.


Page 2215

 1             Mr. Guy-Smith.

 2             MR. GUY-SMITH:  Yes.  I would adopt the remarks that have been

 3     made by Mr. Emmerson at this time.  I think that we need to make sure

 4     that all of the I's are dotted and all the T's are crossed with regard to

 5     procedurally how we're going to move forward, before we get into any of

 6     the substantive issues.  So I, too, would ask for -- ask for

 7     clarification -- not really clarification, but clarity with regard to

 8     whether or not at this point in time the Chamber is inclined to deny the

 9     Prosecution's motion for an adjournment and, subsequently, whether or not

10     the Chamber is inclined or not inclined to order that the Prosecution's

11     case be closed by the end of this week.

12             JUDGE MOLOTO:  Mr. Harvey.

13             MR. HARVEY:  Your Honours, thank you.  I would also ask that the

14     Trial Chamber should rule now on the Prosecution's application to stand

15     this out until May.  Thank you.

16             JUDGE MOLOTO:  I am going to give you an opportunity to address

17     just that point, Mr. Rogers.

18             MR. ROGERS:  Your Honours, Mr. Emmerson, as ever with great

19     skill, seeks to convert this into an application by the Prosecution to

20     keep its case open.  Your Honours will recall that the Scheduling Order

21     that was issued did explicitly envisage such other scheduling periods as

22     may be necessary to enable the witness and/or the evidence to be heard.

23     It's through no fault of the Prosecution that this can't -- yes, through

24     no fault of the Prosecution that this witness can't be dealt with in the

25     time -- time-scale that was previously envisaged.  So, Your Honours, with

Page 2216

 1     that -- with that in mind, that is why we framed the application in the

 2     way that we did.  Also, bearing in mind --

 3             JUDGE MOLOTO:  How was your application framed again?  Can you

 4     just remind the Chamber.

 5             MR. ROGERS:  Your Honour, it's in the confidential submissions

 6     that we put before the Court, and essentially we submitted that if

 7     Your Honours took the view that any delay in waiting for the proceedings

 8     to be concluded in the other country was one that you consider to be

 9     unreasonable in the sense that it may impinge upon the rights of the

10     accused for a fair and expeditious trial, then if that was Your Honours'

11     view, Your Honours having previously indicated that you wished to hear

12     him live before the Tribunal and also having previously indicated that

13     you did not wish further applications to be made whilst that process was

14     being undertaken and completed, the Prosecution was then left in a

15     position of having to wait for those proceedings to be determined before

16     it could bring before you such further applications as may be necessary.

17             Now Your Honours indicate for the first time to us that you may

18     not be thinking that the delay is one that is reasonable, and therefore

19     the other suggestions that we have made come back in to play, that is, to

20     reconsider the other motions that we had previously placed before you on

21     two separate occasions.

22             So, Your Honours, I'm not sure it's quite as simple as

23     Mr. Emmerson wishes to put it, that it's an application by us to keep our

24     case open.  I don't think, respectfully, that it was ever envisaged that

25     the Prosecution would be forced to close its case in this two-week

Page 2217

 1     period; rather, that it was hoped that the proceedings in the other place

 2     would have been concluded so that it could have been dealt with in this

 3     two-week time-frame.  And Your Honours will remember that I raised this

 4     with you in November and some concern as to whether we would be able to

 5     proceed in this -- on this occasion, in February.  And the hope then was

 6     that we would be able to proceed.  And Your Honours will recall that I

 7     invited the Defence, if they wished, to reconsider their own objections

 8     to other methods of determining this witness's evidence -- to hearing

 9     this witness's evidence.  And the Chamber indicated then that it, the

10     Chamber, was of the view that it would prefer to hear this witness

11     viva voce.  And so we proceed to where we are today.  So I think it's a

12     little unfair for Mr. Emmerson to characterise the submissions in the way

13     that he does.

14             Your Honours, can I apologise for my voice.  I'm struggling a

15     little bit today.  All of my colleagues and I are suffering, I think,

16     with a cold and flu and coughs and the rest of it, so you'll forgive me

17     if I have to stop and take some water from time to time.

18             JUDGE MOLOTO:  You're most welcome, Mr. Rogers.

19                           [Trial Chamber confers]

20             JUDGE MOLOTO:  Thank you so much.  It is the understanding of the

21     Chamber that the situation is as explained by Mr. Rogers and not as

22     explained by Mr. Emmerson.  I'm not aware of any application by the

23     Prosecution for a postponement until the witness can be heard.

24     Therefore --

25             MR. EMMERSON:  Just before Your Honour rules, because as always

Page 2218

 1     it's helpful to look at the way the application is pleaded, paragraph 3

 2     of the Prosecution's submission for this hearing reads as follows:

 3             "Based on the latest information from the authorities of the

 4     country, it is certain that" --

 5             MR. ROGERS:  Your Honour, this is a confidential filing.

 6             MR. EMMERSON:  Well, I'm not mentioning anything that will reveal

 7     anything.  It's simply the substance of the way the application is put --

 8             JUDGE MOLOTO:  What's the title of the application?

 9             MR. EMMERSON:  It's:  Submission Pursuant to the Trial Chamber's

10     Order of the 27th of January.  And it's paragraph 3.

11             So it is --

12             JUDGE MOLOTO:  Chamber's Order of the 27th of January?

13             MR. EMMERSON:  I'm sorry, it is a written document headed:

14     Submission by the Prosecution Pursuant to the Trial Chamber's Order of

15     the 27th of January, 2012.

16             JUDGE MOLOTO:  Right.

17             MR. EMMERSON:  Does Your Honour have that?

18             JUDGE MOLOTO:  I do have that, sir.

19             MR. EMMERSON:  Yes, paragraph 3, the Prosecution indicates - and

20     I'll just paraphrase the first few sentences - that it will --

21             JUDGE MOLOTO:  But you have the document before you.  Just read

22     it; don't paraphrase it.

23             MR. EMMERSON:

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 8             MR. ROGERS:  Your Honour, we're in open session.

 9             MR. EMMERSON:  I apologise.  Can that be -- that was a slip of

10     the tongue.  Can it be, please, redacted.

11             JUDGE MOLOTO:  It is redacted.  And may the Chamber please move

12     into private session.

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14                           [Open session]

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

16     you.

17             MR. EMMERSON:  Just to paraphrase, then, in relation to the

18     submission that I made just a moment ago in closed.  I was submitting to

19     Your Honours that having seen the effect of live confrontation and

20     cross-examination on Witness 81, which, as we submit, destroyed any scrap

21     of credibility that the witness may have entered the courtroom with, to

22     then proceed to a trial where a form of second-class justice is meted out

23     in respect of Witness 80 who gives evidence on the same counts so that

24     comparing and contrasting is an inevitable part of the judicial function

25     and in circumstances where similar credibility challenges are to be made


Page 2225

 1     would, we submit, be grossly prejudicial to the accused.  But can I just

 2     put it in its proper context.

 3             It is now, or will be in March, seven years since these

 4     proceedings began with the indictment of Mr. Haradinaj, and a surprising

 5     amount of the time that has elapsed since then has been in one way or

 6     another attributable to the refusal of this particular witness to

 7     testify, both in the first trial, the consequence of the appeal, and in

 8     these proceedings.  Mr. Haradinaj has been in custody since July 2010 on

 9     this re-trial on the basis of this man's evidence alone, because without

10     it there isn't a scrap of a case against him.

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13             MR. ROGERS:  Your Honours, I'm sorry to rise, but we need to just

14     briefly go into private session, please.

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

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Page 2228

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25                           [Open session]


Page 2229

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

 2             MR. EMMERSON:  So, Your Honour, to paraphrase, and for reasons

 3     I've elaborated on in detail in private session, this witness is entirely

 4     free to come voluntarily to The Hague in answer to the subpoena.  That

 5     remains the position today.  It remains the position for the currency of

 6     the current sitting schedule which has been specifically set aside to

 7     enable the Prosecution to complete its evidence.  Nothing that has taken

 8     place and that has been mentioned in private session concerning the

 9     position in the country in which the witness resides in any sense

10     justifies his unwillingness to attend and testify voluntarily, indeed,

11     for reasons that Your Honours are well aware of, far from justifying it,

12     it demonstrates a resolute commitment to non-co-operation and to the

13     opposite position.  Therefore, the Trial Chamber, having twice concluded

14     in July and then again in October 2011, that there was no good reason for

15     his unwillingness to travel and testify in The Hague and that therefore

16     video-link could not be justified, that position is, if anything, a

17     fortiori to the present position.

18             He is still refusing.  He is still not prepared to come and

19     answer the subpoena.  And he is still saying that, whatever happens, he

20     will not give evidence.  That being the case - we submit - to proceed to

21     a form of evidence receipt which would deprive the accused of the full

22     opportunity to confront the witness but would be justified by concerns of

23     fairness to the accused -- because that's what Your Honours would be

24     saying, out of fairness to the accused we're not going to allow the

25     proceedings to continue long enough to have the witness confronted but

Page 2230

 1     somehow we will adopt a less fair procedure for receiving his evidence

 2     but more quickly; that is not what the Defence have submitted to you.  We

 3     are not suggesting to you that second-class form of evidence would meet

 4     the requirements of fairness.  First and foremost and consistently

 5     throughout, we have maintained the position, and we continue to maintain

 6     it, that the only fair manner in which this witness's evidence can be

 7     taken is one of direct confrontation.

 8             That means that faced with the two choices that the Prosecution

 9     have placed before you, the only one that is capable of meeting the

10     requirements of fairness at all would be now to make an order for travel

11     to the country for the evidence to be taken there.  But I venture to

12     suggest that the Trial Chamber would hesitate long and hard before

13     ordering that effort and expense in respect of a witness who for seven

14     years has messed the Tribunal about and whose present intention as

15     expressly stated and evidenced by his conduct in legal proceedings in the

16     country in which he is resident is that he has no intention of giving

17     evidence at all.  And if that is the case and the Trial Chamber wouldn't

18     be willing to accommodate (redacted)

19     (redacted) evidence, then to allow video evidence to -- or

20     video-link evidence to stand in its place, when the Defence are not

21     asking you to do that out of fairness -- we were invited to take that

22     position last time, to trade off, somehow, delay against confrontation,

23     and we refused to do it.  And we still refuse to do it.

24             Those are our submissions.

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

Page 2231

 1             MR. GUY-SMITH:  I will not horse-trade my client's rights.  I

 2     don't intend to do so today.  The only manner of dealing with this

 3     particular witness is through direct confrontation.  I earlier said that

 4     Mr. Rogers was incorrect in another regard.  Mr. Rogers continues to

 5     suggest that the way that you can secure the evidence is by way of

 6     video-link; I suggest to you that that's not the case.  This witness has

 7     been clear.  He's been clear throughout this case.  And lest there be any

 8     question whatsoever, he was clear at the first trial, as early as

 9     January of 2007.  In May of 2007, he was reputed to have said:  Even if

10     he would be forced to appear, he would not say anything at trial.  And

11     that he did not wish to be contacted by the Prosecution or the ICTY

12     again.

13             He has successfully evaded all legal processes.  He continues to

14     fight against the legal process.  He has made it absolutely clear that he

15     does not intend to testify at this trial.  And the suggestion at all in

16     any respect whatsoever that a video-link would be a remedy is not only

17     short-sighted, it's also incorrect.

18             Above and beyond that, I think there's something very important

19     that's occurred in this case, and it occurred with more than just one

20     witness.  It occurred with more than just Witness 81.  This Chamber has

21     had the opportunity to see not once but on a number of occasions that

22     when witnesses have been put into the crucible of the trial and have been

23     able to be confronted in person, as they should be, that their evidence

24     has continually been wanting.  At this point to suggest, once again, any

25     solution other than direct confrontation would be, in our submission,

Page 2232

 1     incorrect.  And I will not repeat that which Mr. Emmerson has mentioned

 2     with regard to this Chamber's rulings.

 3             But I think also there is a very serious problem and serious

 4     consideration with regard to, as was suggested by Mr. Emmerson and has

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11     this juncture to suggest that there is something that can be done to

12     remedy the situation - and I do adopt Mr. Emmerson's remarks with regard

13     to second-hand justice - is, in our respectful submission, just

14     unacceptable, plainly unacceptable.

15             This witness is rife with contradiction.  The Prosecution is well

16     aware of that.  The Prosecution is well aware of the difficulties that

17     exist with this witness's credibility.  It is unfortunate they haven't

18     given that serious consideration.  They should have.  They most assuredly

19     should have after what we saw with Witness 81.  We, on behalf of

20     Mr. Balaj, strongly object to any presentation of this witness's evidence

21     through video-link and suggest that you consider very seriously whether

22     or not it is within the interests of justice at all to proceed to travel

23     for his testimony.

24             MR. ROGERS:  Just before Mr. Harvey rises, may we briefly go into

25     private session.


Page 2233

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

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 6                           [Open session]

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

 8     you.

 9             JUDGE MOLOTO:  Thank you, Mr. Registrar.

10             Yes, Mr. Harvey.

11             MR. HARVEY:  Your Honours, if I don't add much to what has

12     already been ably said by Mr. Emmerson or Mr. Guy-Smith, it is not

13     because I or my client feel any less passionately about this issue.  When

14     Mr. Guy-Smith says he will not horse-trade his client's rights, it's a

15     strong, emotive, powerful phrase, and it fully encapsulates what we are

16     being asked to do by the Prosecution here.  In my submission, the duty of

17     a Prosecutor is to present to a Court witnesses in whom he believes he

18     can place some trust to come and tell the truth.  After all that we have

19     seen since January of 2007, when this particular witness, Witness 80,

20     said and continued to say every year since then, that he will not come,

21     and continue to come up with one excuse after another and one blatant

22     defiance after another of any suggestion or order that he should come, at

23     this point I ask rhetorically:  What possible ground could a Prosecutor

24     have for saying, "This is a witness that we believe we can rely on"?

25             Secondly, it is impossible also, in my submission, for the


Page 2235

 1     Prosecution to ask this Tribunal to say a video-link is appropriate,

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 7   (redacted) say to you:  If you go to the country, if you organise

 8     a video-link, that you won't be simply wasting your time and this

 9     Tribunal's resources in doing so.  There is no basis whatsoever for the

10     Prosecution to ask you to take any of the courses that it has asked you

11     to take.  The only thing, in my submission, that a Prosecutor in this

12     position can honourably do is to close his case.  Thank you, Your

13     Honours.

14             MR. EMMERSON:  Just before Mr. Rogers responds, I want to make it

15     be absolutely sure that he knows precisely the case that he's responding

16     to, and also to give my learned friends an opportunity to indicate

17     whether they are in support of the position that I put to Your Honours,

18     or not, on this one issue.

19             The primary position of the Defence is ad item that this is the

20     time for the Trial Chamber to adhere to its Scheduling Order and that if

21     the Prosecution has no further evidence to call in the present sitting

22     session, it should be required to close its case.

23             If the Trial Chamber is not of that view, there then becomes a

24     question of balancing the fair trial rights of the accused against the

25     fair trial rights of the Prosecution.  And Mr. Rogers puts to you two

Page 2236

 1     alternative ways that he says a fair trial could be achieved for the

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 3     the view that the adjournment that was sought in order to enable

 4     confrontation to take case [sic] in The Hague would out of concern for

 5     the rights of the accused take us beyond the implied time permitted by

 6     the Statute.

 7             The next question, then, is:  How do you safe-guard best the

 8     rights of the accused whilst meeting the rights that the Prosecution

 9     asserted?  And since you have taken this course in relation to timing,

10     out of concern for the interests of the accused, but that the primary

11     asserted interest of the accused is to confront this witness in person,

12     it must be the case that the Trial Chamber, if considering alternatives,

13     would be driven to consider the alternative which was least intrusive

14     against the rights of the accused to confront.

15             So if the Trial Chamber were of the view, contrary to the

16     submissions of the Defence, that the Prosecution should in fact be given

17     another opportunity somehow to present its case, then that must be an

18     opportunity to travel to the country in question and to confront there.

19     It cannot be possible to leapfrog that right of the accused and move

20     directly to video-link when we're only in that situation because --

21             JUDGE MOLOTO:  Excuse me, Mr. Emmerson.

22             Mr. Brahimaj, do you have --

23             SECURITY OFFICER: [Microphone not activated] The accused don't

24     have a translator -- a translation.

25             JUDGE MOLOTO:  Translator.

Page 2237

 1             People who are translating for the accused, I'm not quite sure

 2     which booth this is, apparently we have a problem; the accused can't hear

 3     any translation.  Are you able to tell us what the problem might be?  I

 4     see hands -- I see a finger on that booth pointing towards that booth and

 5     I see hands in that booth doing that.  I'm not quite sure I understand.

 6             THE INTERPRETER:  I don't -- I don't know if you can hear me from

 7     here, but we have difficulty with the machine, with the equipment here,

 8     for the one set.

 9             JUDGE MOLOTO:  I can hear you.

10             THE INTERPRETER:  Good.  But we can -- the other set works and we

11     can continue with the other set.  Thank you.

12             JUDGE MOLOTO:  Just before we continue:  Can you hear now,

13     Mr. Brahimaj?

14             THE ACCUSED BRAHIMAJ:  Yes, in English.

15             JUDGE MOLOTO:  In English.

16             THE ACCUSED BRAHIMAJ: [No interpretation]

17             JUDGE MOLOTO:  Wait a minute.  You're talking --

18             THE INTERPRETER:  "Yes, now I can," he said.

19             JUDGE MOLOTO:  He says he can hear.  Okay.

20             And you can hear in the language that you prefer to hear in?

21             THE ACCUSED BRAHIMAJ: [Interpretation] Yes, yes.

22             JUDGE MOLOTO:  Okay.  Just so that we are quite clear:

23             Mr. Balaj, can you also hear in the language that you can

24     understand?

25             THE ACCUSED BALAJ: [Interpretation] Yes, I can.  Thank you.

Page 2238

 1             JUDGE MOLOTO:  And Mr. Haradinaj?

 2             THE ACCUSED HARADINAJ:  Yes, thank you.

 3             JUDGE MOLOTO:  Thank you very much, Mr. Haradinaj.

 4             Mr. Emmerson.

 5             MR. EMMERSON:  Can I just recap in a sentence, then, and partly

 6     because of the interruption and partly so that we assure that translation

 7     has adequately conveyed what I'm submitting.

 8             If you're against our primary submission that the case has now

 9     come to a close for the Prosecution, then you must balance the rights

10     asserted by the Prosecution to a fair opportunity to call the witness

11     against the rights of the accused to have a fair procedure for

12     confronting the witness.  That being the case, and given that we -- it's

13     not us that has asked you to reach the finding that you have, that time

14     prevents him coming to The Hague, our position has always been:

15     Confrontation or nothing.  And given that fair trial rights require

16     confrontation unless it is unavoidable, it would be wrong in principle,

17     and we say unlawful, to leapfrog from a situation that comes about

18     because the Trial Chamber is concerned that the trial would otherwise be

19     unduly delayed and therefore wishes to protect the rights of the accused

20     of its own motion into a position where we leapfrog over the

21     less-intrusive alternative.

22             And since Mr. Rogers puts them equally as alternatives, either of

23     which would meet his fair trial concerns, and since I make it absolutely

24     clear that our submission unequivocally is we should go to the

25     country - we should confront him - if we are not to end the Prosecution

Page 2239

 1     case here, a leapfrog shortcut is, in our submission, an unlawful course

 2     for the Court to take, because the Court would be required on fair trial

 3     principles to adopt the method least intrusive of the rights of the

 4     accused.  And given confrontation is so essential, that must mean an

 5     order to travel and confront.

 6             Now, if the Trial Chamber is unwilling to do that, there has to

 7     be a reason for it.  And in our submission --

 8             JUDGE HALL:  Sorry, Mr. Emmerson, if I might interrupt.  The --

 9     you have continually used the word "confrontation," whereas I think I

10     understand what you are saying.  Could you expand on how this differs

11     from testimony by video-link, the way that you have emphasized.

12             MR. EMMERSON:  Yes, well, first and foremost, the right to

13     confront is sometimes expressed as the right to be in court and to

14     cross-examine either directly or through counsel.  But be that as it may,

15     it is undeniably the case that confrontation, though sometimes it can be

16     done video-link to a less effective extent, is at its most effective in

17     person, in court.  And you saw it with Witness 81.  Now, we want that.

18     In fact, we insist on it.  You agreed with us whilst it was possible to

19     consider any method of getting him here.  We still insist on it.  If

20     you're going to go and let the Prosecution go ahead, then we must travel

21     and have the right to cross-examine in person.  And you know from

22     practical terms, you will have seen video-link cross-examinations, I

23     could not conceivably have cross-examined Witness 81 with the effect that

24     I did had it been conducted via a video-link.  You had ever opportunity

25     to evaluate the man and his responses and you did so.  Now, we want that

Page 2240

 1     with Witness 80 as well, and we're entitled to it, because it is the next

 2     least intrusive method available.

 3             And if the Chamber for any reason concerned with wasting

 4     resources on a witness who isn't in fact going to testify, doesn't want

 5     to do it, that's not a good enough reason, unless you've come to the

 6     conclusion that we've reached the end of the road, which of course is the

 7     conclusion that the last Trial Chamber came to in a situation where they

 8     had taken less extensive measures than you have now.  But so that there

 9     should be no doubt about the position on the record: We have always

10     maintained the right to have the witness in person; you agreed with us;

11     we still maintain it.  If that can't be done within a reasonable time

12     because the Trial Chamber is concerned to protect the accused's rights,

13     then it must be done in the only other method possible.  That will

14     satisfy Mr. Rogers and it would be the only lawful way of proceeding.

15     Because otherwise, you would be -- out of suggested concern for the

16     rights of the accused, you would be taking away the right that the

17     accused most cherishes.  And that, in our submission, would be illogical,

18     irrational, and unlawful because of the requirement of proportionality

19     that you must proceed to the least intrusive step next.

20             Now if, as I say, the Trial Chamber thinks that's impractical or

21     just not real life, then that must be confronted, because it's difficult

22     to see how it could be right and fair to go to video-link when the

23     Trial Chamber has concluded that proper confrontation would be a waste of

24     time.

25             So we simply cannot leapfrog into second-class justice.  That is

Page 2241

 1     our position.  So, first of all, we say there's a Scheduling Order,

 2     there's no application for it to be extended, the matter should remain

 3     where it is, the Prosecution have until next Friday to close their case.

 4     If you're against us, then regrettably you're going to have to make an

 5     order, we say, to travel to the country where the witness resides and is

 6     still refusing to testify.

 7             But at that stage - and this would apply whichever route the

 8     Trial Chamber was inclined to adopt - the question of timing would arise,

 9     because it still has to be -- if you're taking the view that the trial

10     must be completed within a reasonable time and that the current proposal

11     to extend to May would breach that, then it would still be necessary to

12     have a firm grip on how long it would take to make the necessary

13     arrangements.  And, as we submit, the right course is to say, Let's see

14     whether the Prosecution can complete their case by the currently

15     scheduled time.

16             But this isn't - and I hope -- you know, we've used different

17     phrases.  Mr. Guy-Smith's talked about horse trading.  I've talked about

18     a situation where things are done and elided together and therefore

19     traded off the one against the other.  I mean, I was anxious to avoid the

20     invidious position where effectively the Trial Chamber was asking me to

21     say would you rather have the witness live and wait or would you rather

22     have some alternative method such as video-link and go sooner?  When the

23     answer to this question is one that we shouldn't have ever been required

24     to give and we weren't required to give because the Trial Chamber took a

25     decision of its own motion in relation to time.  That then enables us to

Page 2242

 1     address what the alternative is.  But that being the case, to take away

 2     our right to confront in person, in court, which you've already said is

 3     the right way this witness should give evidence, and obviously is the

 4     right way, given his importance and given the fact he gives evidence on

 5     the same count as Witness 81, who you saw effectively collapse in front

 6     of you through oral cross-examination and confrontation, it simply cannot

 7     be right in principle or indeed lawful within the exercise of the

 8     Trial Chamber's discretion to jump from the situation we're in now

 9     through to a form of receipt of the evidence which impairs the Defence

10     rights when there's an alternative available that wouldn't do that.  And

11     so that is my submission.

12             If either of the two counsel for either of the co-accused

13     disagree with that, in other words, they want to put a different position

14     in relation to what should happen if you're against us on the principal

15     submission, then I'd invite them to do that before Mr. Rogers responds.

16     But I would invite the Trial Chamber directly to address this submission

17     in any ruling that it gives.

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

19             MR. GUY-SMITH:  I think I've been invited only if I disagree;

20     however, I think what needs to be said at this point is I agree with the

21     position that Mr. Emmerson has taken.  I hope that we are not in any

22     sense contemplating choosing between two rights.  So --

23             JUDGE MOLOTO:  Choosing between two ...

24             MR. GUY-SMITH:  Between two rights.  And by that I'm talking

25     about video-link versus direct confrontation.  Because if we are for

Page 2243

 1     purposes of accommodating a witness, it's my submission that it's just

 2     wrong, it's legally wrong.

 3             With regard to the issue of balance and balancing the various

 4     rights and here most assuredly the right of the Prosecution:  If we were

 5     dealing with this case in the first instance, I would not raise the issue

 6     of laches as a legal concept, but we're not dealing with a case in the

 7     first instance.  We're dealing with a witness who has, for, as I

 8     indicated earlier, for a number of years, more years than this particular

 9     case has been going on, made it very clear what his position was and the

10     Prosecution did not engage in due diligence with regard to getting that

11     witness into this courtroom.

12             Judge Hall, you asked a question which I think was with regard to

13     expanding on the issue of the confrontation in person as opposed to by

14     video-link.  And I think the easiest way for me to answer that question,

15     apart from what I think you've all seen in terms of what happens here in

16     a courtroom and the importance of real-time present cross-examination, is

17     something that occurred in the last case that I tried here in which I had

18     a video-link and I cross-examined a witness for six days by way of

19     video-link.  That was not a video-link that was done in a country that

20     was technologically challenged.  As a matter of fact, it was the

21     United States.  If we were interrupted during that cross-examination

22     15 times, I would be being conservative, in terms of technical problems.

23     If we were interrupted because the formality of the proceedings in the

24     fashion in which it was handled back in the United States occurred

25     another good ten times, I would be being conservative.  And quite


Page 2244

 1     frankly, the cross-examination was not as complete and did not afford my

 2     client the adequate, full - as Judge Parker would say - ventilation of

 3     the issues and of his rights as should be expected.  It was most

 4     unsatisfactory, and I believe that everybody who experienced that is well

 5     aware of how unsatisfactory that proceeding was.

 6             And by interruptions, I don't mean interruptions for about a

 7     minute.  I mean interruptions for 20 minutes, a half an hour, ten

 8     minutes, 15 minutes, break-ups.  So that all of the kinds of things that

 9     happen in a courtroom when the witness is sitting in the chair and we all

10     are able to see the witness's cognitive reaction, emotional reaction,

11     body language, facial reaction to being confronted with not only hard

12     questions but also questions concerning their credibility should not be

13     lost.  And I trust that on behalf of Mr. Balaj you will guard that right

14     of his in these proceedings in this case.  There is no legal

15     justification for a video-link.

16             MR. ROGERS:  Your Honour, before Mr. Harvey --

17             JUDGE MOLOTO:  Thank you --

18             MR. ROGERS:  Forgive me.

19             JUDGE MOLOTO:  Yes.

20             MR. ROGERS:  There are some matters we need to deal with briefly

21     in private session before Mr. Harvey adds his submission.

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

23                           [Private session]

24   (redacted)

25   (redacted)

Page 2245

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 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                           [Open session]

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

19             JUDGE MOLOTO:  Thank you so much.

20             Yes, Mr. Harvey.

21             MR. HARVEY:  Your Honours, I just want to say that I endorse

22     fully everything that Mr. Emmerson and Mr. Guy-Smith have said.  Unless

23     Your Honours have any other issues that you would like me to address in

24     respect of the unsatisfactoriness of video-link, all I would say is I

25     cannot think of a more unsatisfactory situation than an individual like


Page 2246

 1     this one, whose credibility is already in tatters without him entering

 2     the courtroom, being able to hide behind the small protection that a

 3     video-link might be said to give.  I simply think it's unconscionable in

 4     the case of this particular nature.  Thank you.

 5             JUDGE MOLOTO:  Thank you, Mr. Harvey.

 6             Yes, Mr. Rogers.

 7             MR. ROGERS:  Would Your Honour wish to take the break now and

 8     then I respond, or do you wish me to deal with some response now?

 9             JUDGE MOLOTO:  Are you going to be more than five minutes?

10             MR. ROGERS:  Yes.

11             JUDGE MOLOTO:  We'll take a break now and we'll come back at

12     4.00.

13             Court adjourned.

14                           --- Recess taken at 3.25 p.m.

15                           --- On resuming at 4.00 p.m.

16             JUDGE MOLOTO:  Mr. Rogers.

17             MR. ROGERS:  Your Honour, Rule 81 bis provides only one test,

18     that is, that they -- a "request of a party or proprio motu, a Judge or a

19     Chamber may order, if consistent with the interests of justice, that

20     proceedings be conducted by way of video-conference link."  The same

21     interests-of-justice test is reflected in Rule 4.  And, Your Honours, we

22     present both of the options to Your Honours for consideration as to which

23     you think is the right option to take in the circumstances.  In our view,

24     they can meet the requirements of a fair trial and the requirements of

25     Articles 20 and 21.

Page 2247

 1             Your Honours, Mr. Emmerson in his submissions refers to the

 2     good-reason criteria.  Your Honours, in our submission, there is no

 3     hierarchy of criteria to be applied.  The sole test is that of the

 4     interests of justice.  And whilst you may look to some of those criteria

 5     to determine how the interests of justice fall in any particular case,

 6     they're not cumulative or overly binding; they're just a guide-line that

 7     has been stated on numerous occasions.

 8             Indeed, in the Popovic case, Your Honours may be familiar, on the

 9     28th of May, 2008, the Trial Chamber in Popovic, referring to a previous

10     decision of its at paragraph 11 of the decision of the 28th of May, 2008,

11     expressly stated that it considered it unnecessary to require that

12     unwillingness be for good reason in the view of the Trial Chamber, while

13     the basis for refusal may be relevant to the broader and paramount

14     question of interests of justice, good reasons for unwillingness should

15     not constitute a prerequisite for the use of video evidence.  Although

16     the witness may be unwilling to testify live before the Tribunal without

17     good reasons, there may be cases where it is nevertheless in the

18     interests of justice to allow certain witness testimony to be heard via

19     video-link.

20             Your Honours, respectfully we submit that the Trial Chamber in

21     Popovic was insightful and recognised, in accordance with the

22     jurisprudence, that the only test is that of the interests of justice

23     which has to be calculated on a case-by-case basis.  Your Honours, this

24     Chamber has carefully assessed that each step to be taken in this case

25     and in our submission the time has come, and it appears the Chamber also

Page 2248

 1     accepts that the time has come, in which we need to move from what's

 2     become an impasse to assess the interests of justice in the case overall.

 3     And that includes looking at whether it is fair to proceed without the

 4     evidence, and Your Honours have already accepted and it appears that my

 5     learned friends also accept that this evidence is critical evidence.

 6             The sole question that remains, then, is:  How do we balance that

 7     interest out with the interests of the accused?  The Defence wish for a

 8     Rule 4 hearing because they say it preserves their right to

 9     confrontation.  Your Honours will know of the settled jurisprudence

10     relating to video-link, that there repeatedly it has been accepted that

11     the right to confrontation is preserved by the video-link itself.

12     Indeed, in very early on before there was even a rule, in the Delalic

13     case the Trial Chamber, perhaps rather pithily, although it's a little

14     bit long, summarised the position in this way.  They said:

15             "It's important to re-emphasise the general rule requiring the

16     physical presence of the witness."

17             Well, we all know that.  That's why we're here.

18             [As read] "this is intended to ensure confrontation between the

19     witness and the accused and to enable the Judges to observe the demeanour

20     of the witness when giving evidence.  It is, however, well known that

21     video-conferences not only allow the Chambers to hear the testimony of a

22     witness who is unable or unwilling to present their evidence before the

23     Trial Chamber at The Hague, but also allows the Judges to observe the

24     demeanour of the witness whilst giving evidence.  Further, and

25     importantly, counsel for the accused can cross-examine the witness and

Page 2249

 1     the Judges can put questions that clarify evidence given during

 2     testimony.  Video-conferencing is, in actual fact, merely an extension of

 3     the Trial Chamber to the location of the witness.  The accused is

 4     therefore neither denied his right to confront the witness, nor does he

 5     lose materially from the fact of the physical absence of the witness.  It

 6     cannot, therefore, be said with any justification that testimony given by

 7     video-link conferencing is a violation of the right of the accused to

 8     confront the witness.  Article 21(4)(e) is in no sense violated."

 9             In the Karadzic case, a decision of the 22nd of July, 2010, the

10     Trial Chamber there said with regard to the third criterion, that's the

11     criterion of fairness to the accused, the Chamber notes the jurisprudence

12     of this Tribunal to the effect that the use of video-conference link does

13     not violate the rights of the accused to cross-examine the witness or to

14     confront the witness directly.

15             Similar considerations in Djordjevic.

16             Your Honours, it is precisely because video-conference link in

17     certain circumstances is available that the rights of the accused can be

18     preserved.  It's wrong for my learned friends to suggest that the use of

19     a video-conference link will in some way impinge upon that right simply

20     because it's not their preferred, or the preferred method; when assessing

21     the interests of justice, wider considerations are taken into account.

22     And repeatedly Trial Chambers have held that there is no violation of the

23     right to confront, which is really the main stem of my learned friends'

24     arguments as to why Rule 4 should be preferred.

25             They refer -- or Mr. Emmerson repeatedly referred to

Page 2250

 1     leapfrogging.  In our respectful submission, there's no question of a

 2     leapfrogging suggesting that there is some hierarchy of rights or

 3     hierarchy of ways in which to preserve a fair trial.  As has repeatedly

 4     been held, this method of video-link conferencing does meet the interests

 5     of justice and the rights of the accused.

 6             Your Honours, I have nothing further I wish to add at this stage.

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

 8             You are not going to reply, Mr. Emmerson.

 9             MR. EMMERSON:  Well, I would like to.

10             JUDGE MOLOTO:  Well, that was a reply --

11             MR. EMMERSON:  Well that was a response.

12             JUDGE MOLOTO:  No, that was a --

13             MR. EMMERSON:  Well, we made the submissions first.  That was his

14     reply.  So I wanted, if I may, to respond.

15             Just -- it won't take very long, Your Honours.

16             JUDGE MOLOTO:  What submissions did you make, sir?  I mean ...

17             MR. EMMERSON:  We made submissions opposing the use of

18     video-link.

19             JUDGE MOLOTO:  Precisely.  So he has made the request for the

20     video-link.  So you replied to that request.

21             MR. EMMERSON:  Well --

22             JUDGE MOLOTO:  And then he's now replying.  You responded to that

23     request.  Now he's now replied.

24             MR. EMMERSON:  All I'd like, if I may, is just to do --

25             JUDGE MOLOTO:  But do you agree with me that you --

Page 2251

 1             MR. EMMERSON:  Well I think, if I may say so, these proceedings

 2     have been procedurally rather idiosyncratic, because there was an

 3     application from the Prosecution for an extension in the first part of

 4     the submission which Your Honour took not to be an application but a

 5     submission making an argument.  And so we've ended up in a situation

 6     where there's been a degree of to-ing and fro-ing.  But certainly, given

 7     the limited point I want to make to Your Honours, I don't think it ought

 8     to cause a great deal of trouble.

 9             Your Honours have summarised the law on video-link we say

10     accurately in your decision of the 13th of October last year on the

11     second occasion when you refused a video-link at paragraph 10, and having

12     regard to the rules that you've been taken to by Mr. Rogers, Your Honours

13     said this:

14             "The Chamber will mention here nevertheless that proceedings may

15     be conducted by way of video-conference link if the following criteria

16     are met:

17             "A. The testimony of a witness is shown to be sufficiently

18     important to make it unfair to proceed without it."  That's not an issue.

19             "B. The witness is unable or unwilling for good reason to come to

20     testify before the Tribunal in The Hague.

21             "And C. The accused must not be prejudiced in the exercise of his

22     right to confront."

23             Well, the fact that -- and the citations are Celebici, Karadzic,

24     and there's a reference as well to Popovic, recognising those as central

25     criteria.

Page 2252

 1             MR. ROGERS:  Could my learned friend just read in the next

 2     sentence, please.

 3             MR. EMMERSON:  Yeah.  While these essential -- @whilst these

 4     criteria are central considerations, the Court must ultimately determine

 5     whether it would be in the interests of justice on the basis of all

 6     relevant considerations to proceed with testimony via video-link," but

 7     those are the central considerations.  And you found that the second one

 8     wasn't met.  And nothing has changed, as we submit, since then.  And the

 9     suggestion of Mr. Rogers that a video-link does not diminish the rights

10     of the accused to confront by reference to authorities that say in

11     certain circumstances it may not render a trial unfair flies in the face

12     of the proposition that one of the central criteria consistently adopted

13     by the Court is that the accused mustn't be prejudiced; in other words,

14     there must be no damage to the accused's rights to a fair trial.

15             And obviously the more important the witness is to the

16     proceedings, the more likely proceeding via video-link will impair the

17     fairness of the trial.  If it's a technical witness or a witness of

18     relatively marginal importance or dealing with purely formal matters,

19     then there is relatively little threat to the fairness of the trial.  But

20     the more important the witness is, the greater the importance of the

21     right to confront directly.  And that's axiomatic, and indeed it's part

22     of the Strasbourg jurisprudence.  Well, we're dealing here with a witness

23     on whom the Prosecution's case against my client entirely hinges.  And as

24     we would submit, where credibility is an issue in those circumstances,

25     it's simply not enough to say video-link is as good as a real trial.

Page 2253

 1     Because it isn't and everyone knows that it isn't.  And that's why the

 2     prejudice to the accused, which is greater in a case such as this, done

 3     in any other case one could imagine -- because it -- he being the sole

 4     witness upon you -- the Prosecution's case now rests.  The very fact that

 5     that is a key criterion in the Court's jurisprudence, in our submission,

 6     is a recognition that if a case is at one end of the spectrum, as this

 7     case is, it wouldn't be right in the interests of justice to allow it

 8     proceed in that way.

 9             But also, on this Trial Chamber's own correct summary of the case

10     law, the requirement -- the second requirement of being unwilling or

11     unable for good reason to testify before the Tribunal in The Hague is a

12     central key criterion.  Now, you've already held that it wasn't satisfied

13     twice, and nothing has changed in the Prosecution's favour.

14             JUDGE MOLOTO:  Thank you very much.  The Trial Chamber will give

15     a decision on this matter at a later stage.  The parties will be advised.

16             Court adjourned.

17                           --- Whereupon the hearing adjourned at 4.12 p.m.