Tribunal Criminal Tribunal for the Former Yugoslavia

Page 81

1 Thursday, 23 October 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.00 p.m.

6 JUDGE MARTIN-CANIVELL: [Microphone not activated] Okay, good

7 afternoon, ladies and gentlemen.

8 THE INTERPRETER: Microphone, please.

9 JUDGE MARTIN-CANIVELL: Oh, yes. Excuse me. It's okay? Do you

10 hear me?

11 I said good afternoon, ladies and gentlemen, and I am sorry for

12 the delay we have suffered. I hope nobody is really harmed because of

13 that.

14 Please if the registrar will call the case.

15 THE REGISTRAR: Good afternoon, Your Honour. This is case number

16 IT-03-66-PT, the Prosecutor versus Fatmir Limaj, Haradin Bala and Isak

17 Musliu.

18 JUDGE MARTIN-CANIVELL: Can we have the appearances, please, for

19 the Prosecution.

20 MR. WHITING: Yes, Your Honour, good afternoon. For the

21 Prosecution, Alex Whiting, along with Mr. Colin Black, and Mr. Bill Smith.

22 JUDGE MARTIN-CANIVELL: Yes, thank you, Mr. Whiting.

23 For the Defence, please.

24 MR. KHAN: If it please Your Honour, Karim Khan for Fatmir Limaj.

25 MR. GASHI: Tome Gashi, for Haradin Bala.

Page 82

1 MR. MURPHY: Your Honour, Peter Murphy also for Haradin Bala.

2 MR. POWLES: Good afternoon, Your Honour. Steven Powles for Isak

3 Musliu.


5 I've been informed of what's been going on lately in the case in

6 order to be of some use in this meeting -- is there any problem? And I'm

7 glad to know that the disclosure is working at a pace which could be

8 considered good with a few exceptions. I have been told that the

9 proposition of 13 92 bis article of the witnesses of the Prosecution

10 haven't been answered by the counsels for the accused, but I don't know if

11 it has been transmitted to them very recently, they have still time to --

12 okay, don't tell me anything. I see by your face that you agree with my

13 assumption.

14 The second point relates to -- in relation with the disclosure

15 matters is the -- it seems to me there is not complete accordance between

16 the Prosecution and the counsels about the possibility of cooperating in

17 this last one - I mean the counsels for the accused - in tracing and

18 devising what could be the points or the methods even of exculpatory

19 evidence that could be included in the Prosecutor's papers. I think they

20 had offered you to give to the Office of the Prosecution an answer about

21 how to devise -- how to get, to recover, in other words, whatever could be

22 of exculpatory evidence for your clients. So I would encourage you to try

23 to find a solution to that, and then that you find it agreeable for you to

24 do that. Well, I hope that could be done in order to push a little bit

25 the expeditiousness of the -- and the resolution of the case.

Page 83

1 Another question that I would like to slightly mention only is

2 that the Prosecution has asked for protective measures for eight extra

3 witnesses. The question has been to -- is going to be considered by the

4 Court. And of course, you know about this petition being made by the

5 Prosecution.

6 There's another point that sometimes is helpful, is the agreement

7 on certain facts between the parties. And I would like to encourage you

8 to try to agree on these points as much as possible, because without being

9 any harm for anybody of the accused, it's at the same time another

10 possibility to arrive to the disposal of the case sooner.

11 I had also been told that yesterday in the 65 ter meeting there

12 was given an appraisal about the moments at which the case could be -- go

13 to trial. The information I had got is somehow a little bit contradictory

14 in the sense that even if the Prosecution - and correct me if I am not

15 right - has suggested they could be able to present their -- his or her

16 brief by the end of January. At the same time, it was made a suggestion

17 that the possibility of asking for a new amendment of the indictment. In

18 this case that could determine on the side of the -- of the counsels for

19 the accused to have to ask for another motion, and that it wouldn't be

20 possible at this -- in this consensus to go to -- to take the case to

21 court six weeks after the presentation of the brief by the Prosecution.

22 So I tried to encourage also the Prosecution to do its best -- her best in

23 the -- in dealing with this matter, because -- because it would be good

24 for the expeditious way in which the case should be dealt with.

25 I don't think there is, unless you have some suggestions, any

Page 84

1 other matter that could be of merit to be considered now at this moment

2 and at this meeting. Please, if you have some other matters that would

3 you like to bring about, please do now. The Prosecution.

4 MR. WHITING: Your Honour, if I may, I would just like to address

5 the Court's final point about the amended indictment, because I can

6 understand that that could cause some concern to the Court, with respect

7 to the schedule.

8 JUDGE MARTIN-CANIVELL: I'm hearing -- pardon me?

9 MR. GASHI: [Interpretation] We don't have translation into

10 Albanian.

11 MR. WHITING: Is it now working? Okay.

12 JUDGE MARTIN-CANIVELL: I am hearing you.

13 MR. WHITING: I think it was the Albanian translation which

14 wasn't working, but it is now.

15 JUDGE MARTIN-CANIVELL: That is probably the case.

16 MR. WHITING: I'll start again. I'll just address the Court's

17 final point about an amend indictment, because I can understand that that

18 might cause the Court some concern with regard to the schedule. It is our

19 intention to seek leave from the Chamber to amend the indictment, and we

20 will do that, I expect, within the next couple of weeks. I do not,

21 however, believe that this should cause any significant delay in the

22 scheduling. We will not be expanding the factual basis of the indictment,

23 with the exception of an addition of one single crime. What we'll be

24 doing is simply elaborating and adding to the legal basis in the

25 indictment, and specifically adding a joint criminal enterprise charge.

Page 85

1 Now, of course, I understand that that triggers the possibility

2 of a new round of preliminary motions by the Defence; however, I don't --

3 I do not think that that should delay the proceedings. I think that that

4 can be done in conjunction with the continued disclosure and preparation

5 for trial. It's certainly the Prosecution's intention, even with an

6 amended indictment, to submit its pre-trial brief by the end of January.

7 It is also the Prosecution's intention to seek every way possible to

8 expedite disclosure and to cooperate and reach agreement on issues such as

9 92 bis and agreed facts so that this case can go to trial as quickly as

10 possible. That is our priority, it remains our priority, and it will

11 continue to be our priority.

12 JUDGE MARTIN-CANIVELL: Thank you, Mr. Whiting. I am very glad to

13 hear that you -- your intentions are not to delay at all the arrival to

14 the court hearing of the case. I hope you can maintain your promise and

15 without problems for the counsels of the accused.

16 If you don't have any other suggestions, I would like to ask --

17 you have. Please, tell me.

18 MR. POWLES: Your Honour, on behalf of Mr. Musliu, there is one

19 matter, if I may, that I would like to raise this afternoon. Your Honour

20 will see that today I appear in court without the assistance of lead

21 counsel. Mr. Musliu is minded to instruct a Mr. Klaus Kirchner, a member

22 of the bar in Germany, to represent him as lead counsel. Mr. Kirchner

23 today sits in the public gallery observing these proceedings.

24 I understand that Mr. Kirchner was removed initially from the

25 Rule 45 list of eligible counsel by the -- a decision of the Registrar.

Page 86

1 He thereafter appealed that decision to the President, and Your Honour may

2 be aware that the President issued a decision on the 21st of October, on

3 the question of the assignment of Defence counsel. In essence, the

4 President concluded that Mr. Kirchner should resubmit various documents to

5 the Registrar for reconsideration of his application, firstly to be on the

6 Rule 45 list, and thereafter Mr. Musliu's representative as lead counsel.

7 I am informed that Mr. Kirchner has indeed already submitted such

8 documents to the Registry, and I would respectfully request that such

9 reconsideration take place as a matter of urgency so that the question of

10 Mr. Musliu's representation can be finalised and preparation -- or the

11 continued preparation of his defence can continue in earnest.

12 JUDGE MARTIN-CANIVELL: Yes. Thank you, Mr. Powles.

13 I wonder if the representation of the Registrar can give us any

14 information about the situation. Has this document been returned to the

15 Office of the Registrar?

16 [Trial Chamber and registrar confer]

17 JUDGE MARTIN-CANIVELL: Well, I hope that -- no, don't worry.

18 Sit down.

19 What you are asking for can be dealt with with the -- with the

20 Office of the Registrar. So I cannot --

21 Some of the other counsel would like to say some problems?

22 MR. GASHI: [Interpretation] I'm Tome Gashi for Mr. Bala. In the

23 earlier Status Conference, the latest one, the Prosecutor required -- can

24 you hear me in English -- to give us the --

25 THE INTERPRETER: Can you hear me in English now?

Page 87


2 Yes, go ahead, please.

3 MR. GASHI: [Interpretation] But up to now, the material has not

4 been received by us, in particular, the material regarding the

5 imprisonment of Mr. Murtezi, for whom the other side has given up the

6 indictment or has abandoned the indictment. We don't know anything about

7 the material, and we think that you should exercise your influence with

8 the Prosecution so that the material be given over, be handed over in

9 accordance with regulation 68, because we regard this as exculpatory

10 material, all material which has to do with the imprisonment of Mr.

11 Murtezi. We don't know if there is any more exculpatory material which

12 could be transmitted to our side at all. Thank you very much.

13 JUDGE MARTIN-CANIVELL: Thank you, Mr. Gashi. Well, I wondered

14 if you had already asked - I suppose you have - the Prosecutor about

15 getting this material you are finally lacking, about Mr. Murtezi being

16 included in the first indictment and later on being released. You have.

17 Well, that could be possible for you to apply to the -- to make

18 arrangement with the Prosecution to get this information and the document

19 required. I mean, it could be normally available for --

20 MR. WHITING: Your Honour, this -- this issue came up at the last

21 Status Conference and 65 ter Conference. Following that conference, the

22 Prosecution reviewed all of the material related to the arrest of

23 Mr. Murtezi and disclosed all of the information that was Rule 68 for

24 these accused promptly, I am happy to re-send that information, but it has

25 already been done.

Page 88

1 JUDGE MARTIN-CANIVELL: Okay. So you have some answer that could

2 be perhaps satisfactory for you.

3 Any other subjects that you would like to raise now? Yes,

4 please.

5 Mr. KHAN: Your Honour, just in relation to that last point.


7 Mr. KHAN: Perhaps the area of dispute relates to the definition

8 of "exculpatory evidence."


10 Mr. KHAN: The concern of the Defence, of course, is having sight

11 of the evidence that led the Prosecution to release Mr. Murtezi and not

12 only release him but to amend the indictment so that his name was removed.

13 It appears my learned friend is simply confining himself to the evidence

14 which may, strictly speaking, seem to mitigate or otherwise show a defence

15 in relation to my particular client. It's my submission that exculpatory

16 evidence is wider than that.


18 Mr. KHAN: Because if a doubt has been cast upon evidence in

19 relation to part of the Prosecution case, what we want to know is whether

20 or not those same witnesses that were unreliable and led to the withdrawal

21 of Mr. Murtezi's case are witnesses against my client.


23 Mr. KHAN: That's the specific issue that I would like

24 clarification upon.

25 JUDGE MARTIN-CANIVELL: Well, thank you, Mr. Khan.

Page 89

1 I think that the release of Mr. Murtezi was on the basis that he

2 wasn't the right person that was being searched. But I would say that

3 every precedent that is included in the case that could be of any, let's

4 say, favourable -- favour for the accused could be submitted to you. So I

5 suppose if you ask for it, you will get this possibility. And I think in

6 any case, you can make a motion to the Court in this sense and to even

7 study about the possibilities that -- I primarily believe that it will be

8 possible for you to get this information, but we'll try to see whatever

9 this is, if this is really necessary for you because it's exculpatory

10 value for your -- for your client.

11 So if you don't have any other questions to submit to me now, I

12 will refer to the persons of the accused.

13 Mr. Limaj, please, would you stand up.

14 Do you understand me well in a language you understand yourself?

15 And the proceedings that have been going on so far, you have understood

16 everything that has been translated to your satisfaction, in a language

17 that you understand?

18 THE ACCUSED LIMAJ: [Interpretation] Yes, Your Honour.

19 JUDGE MARTIN-CANIVELL: Okay. I would like to know if you have

20 any other suggestions to -- well, to see -- to review, to allow you the

21 possibility of reviewing the state of your case and if you have any other

22 issue to raise in spite of the -- besides those that have been raised by

23 your -- your counsel.

24 THE ACCUSED LIMAJ: [Interpretation] I think my lawyer said

25 everything which had to be said.

Page 90


2 THE ACCUSED LIMAJ: [Interpretation] Because I'm in the final

3 stage of proceedings here. We've -- there's been a long time that we

4 haven't had an opportunity to say what we wanted to say, and now we're in

5 the final phase and the procedures I think will be respected, and we will

6 conduct everything through our counsel, because up to now no opportunity

7 has been given to us to express our opinions, and I hope that we will have

8 an opportunity now to express our views on the issue. Thank you.

9 JUDGE MARTIN-CANIVELL: Well, exactly this kind of a Status

10 Conference are the moment for you to be heard about whatever complaint or

11 whatever matter you would like to.

12 More specifically, I would like to ask you about the question of

13 your situation and your health and your mental and physical condition.

14 You are feeling well treated and you have any problems within your stay in

15 the Detention Unit related to your health?

16 THE ACCUSED LIMAJ: [Interpretation] As to my personal situation,

17 I'm fine. My health is all right. I don't have any health problems. And

18 treatment, as I said previously, I'm extremely satisfied with the

19 treatment I'm receiving. So I don't have anything to complain about with

20 regard to my personal situation.

21 Whereas, other problems about the procedures here in the trial, I

22 think my lawyer will raise the issues. One of the major problems that I'm

23 having, that I would like to mention or request is that I haven't been

24 given an opportunity to express my views directly with regard to my

25 request for provisional release. I think this is part of the procedure,

Page 91

1 and I think I should have an opportunity to express myself directly with

2 arguments with regard to provisional release and with regard to the

3 refusal thereof.

4 JUDGE MARTIN-CANIVELL: Thank you, Mr. Limaj. You may sit down.

5 The problem of your provisional release, as you may know well - I

6 suppose your counsel has informed you about - has been denied at the level

7 of the Trial Court and has been subjected to a -- an appeal which is now

8 to be decided by the -- the appealing section of the Tribunal. That's the

9 most I can tell you, because it's out of my power now to take a decision

10 on this matter.

11 Mr. Bala, please. Do you have any suggestions or any issue you

12 would like to raise about your case or the way your case is being handled

13 and -- that I could in some way be able to -- to correct, if necessary?

14 THE ACCUSED BALA: [Interpretation] No, I have nothing special to

15 say, and I think what I do have to say will be said by my legal

16 representative, my lawyer.

17 JUDGE MARTIN-CANIVELL: In relation with your health, you had

18 presented in the past some problems, I remember, and I have read about the

19 -- the report given by the doctor that attended, I mean that took care of

20 you. Do you have any other problems now? You are well cared for? Do you

21 feel all right?

22 THE ACCUSED BALA: [Interpretation] Everything is fine. I'm being

23 very well treated.

24 JUDGE MARTIN-CANIVELL: Okay. I remember that the doctor said

25 that you could help if you stopped smoking, so probably that will be

Page 92

1 something that will contribute to your well-being.

2 Okay. Please sit down.

3 And please, Mr. Musliu, will you please -- do you have any matter

4 you would like to bring to the attention of the -- of the Court on the

5 disposal of your case?

6 THE GUARD: The microphone doesn't work.

7 JUDGE MARTIN-CANIVELL: It doesn't work?

8 THE ACCUSED MUSLIU: [Interpretation] Thank you that you've given

9 me an opportunity to talk. I agree with everything what you said up to

10 now, and I have nothing to add for the moment. Thank you.

11 JUDGE MARTIN-CANIVELL: Well, my problem now is you have been

12 understanding whatever has been said during this meeting, in a language

13 you could understand, or you have been deprived of the translation?

14 THE ACCUSED MUSLIU: [Interpretation] Oh, I've understood

15 everything.

16 JUDGE MARTIN-CANIVELL: Okay. About your health now, a point you

17 would like to remark about that?

18 THE ACCUSED MUSLIU: [Interpretation] My health is fine, thank

19 you.

20 JUDGE MARTIN-CANIVELL: Okay. You may sit down.

21 I have been informed also about a matter which I would like to

22 comment on. It is the fact that the accused are brought whenever they

23 have to get out from the Detention Unit and to come here to the Tribunal,

24 they are brought handcuffed and blindfolded. I know your complaints about

25 this situation. I want you to know that the decision on this aspect of

Page 93

1 your treatment is not completely to the power of this Tribunal, of this

2 Court, because you are treated like that in -- by the local police, the

3 Dutch police, which understands that this is necessary for you attending

4 to the criteria that you may be subjected to this kind of treatment. I am

5 afraid that is the case. Nevertheless, I would endeavour to the Registrar

6 to take some steps with the local police - that's the police of the

7 Netherlands - to see if that situation could be eased without any problem.

8 So that is the most I can tell you about that. I know that a short

9 statement about the situation has been distributed, if not to you at least

10 to your counsels. So I think it would be helpful and we'll try to get

11 some better situation for you in the future.

12 I don't think is there any other question that you would like to

13 bring about now? Please.

14 MR. KHAN: Your Honour, if I may, just one matter arising out of

15 that: It's right to say that every administrative decision must be

16 judicially reviewable and the --


18 MR. KHAN: -- decision regarding the conditions of transit is a

19 matter of great concern to my client.


21 MR. KHAN: I would ask that, as you've already said, that the

22 matter be raised with the Registrar, but more particularly --


24 MR. KHAN: -- if a favourable decision is not forthcoming, if the

25 conditions are not different on the next occasion, I would request that

Page 94

1 the parties be notified in advance, because I can say that if they do not

2 change, it may be much more difficult for the accused to agree to come

3 here. So it is a matter of great concern.

4 JUDGE MARTIN-CANIVELL: Thank you, Mr. Khan. I understand what

5 you mean.

6 But if you are seeking an administrative review or a judicial

7 review of the administrative decisions - please, sit down - you have to

8 respect that. I mean, you are referring to the way the -- your client and

9 the clients of the other counsels are being treated. You have to apply to

10 the Dutch administration or the Dutch court. I suppose they -- I mean,

11 completely sure that we have means to make repair and to have the judicial

12 decision about all this. It's the most I can say about that.

13 Well, if not --

14 MR. KHAN: I'm sorry, Your Honour. Perhaps I didn't make myself

15 clear. My point was different.

16 JUDGE MARTIN-CANIVELL: Oh, your point is different. Excuse me,

17 I haven't understood you.

18 MR. KHAN: Yes. Of course. The legal remedies, of course, can

19 be looked into later. All I was asking for is that prior to the next

20 court appearance the parties be informed in advance of that hearing

21 whether or not the Dutch authorities wish to continue with their same

22 treatment of the -- of my client.


24 MR. KHAN: So obviously prior to the next hearing, we can make a

25 decision as to how to proceed.

Page 95

1 JUDGE MARTIN-CANIVELL: I understand. Thank you. Thank you very

2 much.

3 Well, I still recommend the Registrar to take in consideration

4 what has been said by Counsel Khan and try to fit what he is asking for.

5 Well, I think that should be all for the time being. And if

6 nothing else is to be brought about, I'm going to adjourn, not before

7 thanking -- thanking you, the Prosecution, and counsels, and even

8 translator also, of course, and the registrar for your help. And this

9 meeting is adjourned now.

10 --- Whereupon the Status Conference adjourned

11 at 4.30 p.m.