1 Thursday, 17 March, 2005

2 [Open session]

3 [The accused entered court]

4 [The accused Limaj not present]

5 --- Upon commencing at 9.07 a.m.

6 JUDGE PARKER: Mr. Mansfield, there is a difficulty, I

7 understand.

8 MR. MANSFIELD: Yes. I wonder, Your Honour, if we might go into

9 private session while I indicate the nature of the difficulty.

10 JUDGE PARKER: Private.

11 [Private session]

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1 [Open session]

2 JUDGE PARKER: There are two reasons for reassembling. First,

3 regrettably I overlooked the matter that we had moved in private session

4 when we made adjournment decisions and announced them and that needs to

5 be on the public record. But secondly we have now received a brief

6 medical report, and it seems --

7 MR. MANSFIELD: Your Honour, could this be in private session?

8 JUDGE PARKER: -- Mr. Mansfield.

9 MR. MANSFIELD: Yes could I just indicate if it could again be in

10 private session for these purposes.

11 JUDGE PARKER: We're in public session. What is the reason for

12 the private session, Mr. Mansfield?

13 MR. MANSFIELD: Because it concerns confidential matters of --

14 which you have on that report. Well --

15 JUDGE PARKER: Frankly, the Chamber sees no matter of confidence

16 to justify private in this sort of issue.

17 MR. MANSFIELD: Well, certainly Mr. Limaj indicated this morning

18 through others, not to me personally but through others who were coming

19 to Court, two things about today and one of them was anxious that these

20 matters were not discussed in public.

21 JUDGE PARKER: Well, that may be an anxiety of his personally but

22 in terms of justification for this being a private session, the Chamber

23 doesn't accepted that.

24 MR. MANSFIELD: Well, Your Honour, I can't take it further, but

25 that was the express wish.

1 JUDGE PARKER: Now, are you in a position yet any instructions

2 about at least the evidence in chief continuing?

3 MR. MANSFIELD: I'm afraid not directly, only indirectly. The

4 indirect indication that was given early this morning to others was that

5 there was a sincere wish that matters did not proceed in his absence

6 whether in chief or in cross-examination. I make it perfectly clear that

7 I haven't been able to speak to him to confirm that that, but that was

8 the information that was received.

9 JUDGE PARKER: Very well.

10 The Chamber has received a brief medical report indicating that

11 because of an a temporary health infection of the throat, Mr. Limaj is

12 unable to attend Court today and it appears tomorrow, and his position

13 will be re-evaluated on Monday. We must, therefore, adjourn today, given

14 the circumstance that his counsel has not been able to obtain

15 instructions.

16 We would propose to ask, Mr. Mansfield, that you do what you can

17 to see whether instructions can be obtained to facilitate a sitting

18 tomorrow. The sitting would go, I believe in fairness to your client, no

19 further than evidence in chief, so that he should be present through

20 cross-examination. If that doesn't occur, there seems a considerable

21 likelihood, even if we're able to continue on Monday, that the present

22 witness would not finish in the time listed next week, and that would be

23 inconvenient and undesirable for many reasons and would put us even

24 further behind in our own sitting timetable. As you realise we have been

25 losing time steadily in this trial and are now over a fortnight behind

1 schedule.

2 So we would encourage you to seek as well you may instructions

3 about the trial continuing tomorrow in the absence of your client. And

4 with that in mind, we would propose to adjourn now until tomorrow morning

5 at 9.00, and we would hope that by then, it will be possible to continue.

6 I don't think any comment is called for unless you see a

7 particular problem.

8 MR. TOPOLSKI: Your Honours, I'm sorry. I just wanted to rise

9 not to deal with, of course, Mr. Mansfield or Mr. Limaj's obvious

10 difficulties, but a comment that Your Honours just made which is

11 regarding the question of losing time steadily and a fortnight behind

12 schedule. I venture to suggest that is a pessimistic view that is not

13 shared by the bar.

14 JUDGE PARKER: This sound encouraging, Mr. Topolski.

15 MR. TOPOLSKI: I mean it to be. Your Honours won't know that on

16 the 3rd of March all parties met in this building for a review of the

17 case, as it were, what has happened and more importantly what is to come.

18 And an important of that meeting, and I'm looking at my own contemporary

19 rather note of it, dealt with evidence to be called. And it is clear

20 from that meeting and all subsequent discussions that the aim of the bar

21 to conclude the Prosecution case around the middle of April remains the

22 view. Now, give or take a day or two, a few days, perhaps even a week,

23 maybe even two. But, Your Honours that is certainly the position the bar

24 understands the case to be in, notwithstanding as a former of prime

25 minister of us "this little local difficulty" of today. Whether the

1 Chamber has other information that we don't have that gave rise to Your

2 Honours' view that time was slipping by, --

3 JUDGE PARKER: My understanding was early May.

4 MR. TOPOLSKI: I think we're going to do better than that. I

5 think we're go to do better than that.

6 JUDGE PARKER: Maybe the time we're losing today can be spent in

7 discussions between counsel to see where they feel themselves.

8 MR. TOPOLSKI: Some of it already has. I can tell Your Honour

9 that, certainly between myself and Mr. Whiting. And we are ad idem as to

10 the intention to finish in and around the area -- their case, at around

11 the time I have been indicating to you.

12 Your Honour, I only rose to mention all this in case it should be

13 in any way imposing itself upon the view that the Court may take of the

14 present predicament that we are in.

15 Your Honour, I can say that all experts on -- but one are agreed,

16 and we're pretty much in agreement about him. We have saved weeks of

17 evidence on experts in this case. I mean literally weeks. We're go to

18 hear Mr. Coo and he is going to be much shorter, I predict, than we ever

19 would have thought. And all other experts we are not troubling to you

20 hear orally. But one. Oh yes. And it's they who are troubling you,

21 because they insist upon calling Mr. Maart we don't want to.

22 So, Your Honour, I simply add all that into the equation. That's

23 got Mr. Whiting to his feet. I simply add all that so the Court is aware

24 of where we think we are.

25 JUDGE PARKER: We have very grateful for your observations, Mr.

1 Topolski, and encouraged and even heartened by what you say. But Mr.

2 Whiting is going to put cream on the cake or dampen the whole thing.

3 Yes.

4 MR. WHITING: Well, my sense is we are -- continually evaluating

5 which witnesses should be called and whether we can drop witnesses. But

6 my sense at the present is that our goal of mid-April has probably

7 already slipped by one week because of prior delays and I think even now,

8 looking ahead with this current difficulty, even thinking optimistically,

9 I think that is going to cause another week. So I think that does bring

10 us, probably until the end of April.

11 However, we are trying to shorten things as much as possible and

12 try to reach agreement and try to drop any witnesses that we can drop.

13 And we will continue to do that.

14 JUDGE PARKER: Thank you, Mr. Whiting. The Chamber is very

15 grateful for the efforts made by all counsel, we or they, to ensure that

16 that trial can proceed as efficiently as is consistent with the interest

17 of the parties. And we're very encouraged to hear that there may even at

18 this stage a prospect of finishing before the beginning of May.

19 All that aside, it remains the case that there are obvious

20 practical and personal reasons why it would be in everyone's interest if

21 the present witness could conclude his evidence before the considerable

22 break at the end of next week. And for that reason, if it is possible to

23 sit tomorrow, it would, I think, give us just the extra time that can

24 ensure that that objective is achieved. But we will have to wait and see

25 whether that becomes practical or not.

1 MR. MANSFIELD: Your Honour, may I just address you on that

2 matter, because so far today, beyond the doctor, no one else has been

3 able to see him. I think the practicality of attempting to get a

4 satisfactory answer from him with reference to the medical report is --

5 is low. And therefore, the suggestion I have -- and it won't, I think we

6 all agree, jeopardise this timetable is that in fact if he were allowed

7 to recuperate for two days -- that is, today and tomorrow -- that he

8 could then be here in person on Monday.

9 If he couldn't be here on Monday, then obviously at that stage I

10 had already indicated to others that one possible recourse is that he is

11 either able to see on a monitor in the unit what is happening here, or at

12 least is provided with a transcript which would -- in Albanian, which

13 would ease matters because I think he would recognise the need to finish

14 this witness before the Easter break.

15 Were it to take that course on Monday, as opposed to earlier,

16 then this witness would still be finished because the estimate is I think

17 from Mr. Whiting that he may have best part of another session to go

18 still, but perhaps not all of it. And I have already indicated, and my

19 estimates in the past have been reasonably accurate, that I would be

20 about four hours which is less than one session, just. And Mr. Topolski

21 perhaps less than that. So that we would still finish before the Easter

22 break because I understand Mr. Guy-Smith may have very little.

23 Therefore, I think on that basis, it wouldn't -- it wouldn't

24 therefore harm the timetable. I'm just trying to be realistic about it,

25 so whether waiting another day for a situation where I'm probably not

1 going to be able to see him today. And I --

2 [Trial Chamber confers]

3 JUDGE PARKER: In view of those encouraging estimates we hadn't

4 wanted to press about how long cross-examination would take in view of

5 the importance of the witness. But in view of those encouraging

6 estimates the practicality of what you propose commends itself. So

7 that being the case, Mr. Mansfield, we would adjourn until Monday and

8 hope that by then either your client is well enough to be with us or that

9 on Monday morning alternative arrangements can be put in place that will

10 assist him.

11 MR. MANSFIELD: Yes, I'm much obliged.

12 JUDGE PARKER: We will therefore adjourn and resume sitting on

13 Monday at 2.15.

14 --- Whereupon the hearing adjourned at 11.03 a.m.,

15 to be reconvened on Monday, the 21st day of

16 March, 2005, at 2.15 p.m.

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