Page 76
1 Tuesday, 19 May 2009
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.29 p.m.
6 JUDGE MOLOTO: Good afternoon to everybody in and around the
7 courtroom.
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. This is case
10 number IT-02-54-R77.5, in the case against Florence Hartmann.
11 JUDGE MOLOTO: Thank you very much. I would like to confirm,
12 Mrs. Hartmann, that you are receiving interpretation and can understand
13 the proceedings. Did you hear me, Madam Hartmann?
14 THE ACCUSED: Yes, I did.
15 JUDGE MOLOTO: Can you hear the proceedings?
16 THE ACCUSED: Yes, I can.
17 JUDGE MOLOTO: Thank you very much. Should you encounter any
18 difficulties in this regard at any time, please let me know.
19 Okay. Could we have the appearances for the day starting with
20 the Prosecution, please.
21 MR. MacFARLANE: Thank you, Your Honour. My name is
22 Bruce MacFarlane. I'm an attorney from Canada appearing as amicus curiae
23 Prosecutor in these proceedings. Along with me is Lori Ann Wanlin, also
24 from Canada
25 JUDGE MOLOTO: Thank you very much, and for the Defence.
Page 77
1 MR. KHAN: If it please, Your Honour, good afternoon. My name is
2 Karim Khan, and I appear together with my co-counsel Guenal Mettraux, to
3 my left. To my right is our legal assistant, Arina Koligina. And to her
4 right is our legal intern, Samira Mohammed.
5 JUDGE MOLOTO: Thank you, Mr. Khan. I'm not suggesting anything
6 might arise, but should anything confidentially arise during the
7 proceedings, I hope your intern and legal assistant will be aware of
8 their obligations in that regard.
9 MR. KHAN: Your Honour, they are of course, and they have as are
10 required of all legal assistants and interns signed confidentiality
11 agreements and are bound by the respective code of conduct.
12 JUDGE MOLOTO: Thank you.
13 If I may just deal with the procedural background.
14 This is the second Status Conference in this case. The previous
15 Status Conference was held on the 30th of January 2009 prior to trial
16 which had been scheduled for the 5th and 6th of February, 2009. Since
17 that time an issue of disqualification of two Judges of the Chamber arose
18 and has been decided. We are now -- we now have a new bench composed and
19 already -- and ready for trial proceedings to continue.
20 Pursuant to Rule 65 bis (A) of the rules, the purpose of a status
21 conference is to one, organise exchanges between the parties so as to
22 ensure an expeditious preparation for trial; and two, to review the
23 status of this case and to allow the accused to raise issues, including
24 issues related to the accused's mental and physical condition.
25 Mr. Khan, I know that the accused is not in pre-trial detention,
Page 78
1 but I still have to ask you the question. Are you aware of any issue
2 related to her mental and physical condition that needs to be disclosed
3 to the Court?
4 MR. KHAN: Your Honour, no. I'm most grateful for the
5 invitation, but there's nothing that pertains to those matters raised by
6 Your Honour just now.
7 JUDGE MOLOTO: Thank you so much.
8 And the senior legal officer sent a draft agenda to the parties
9 and invited items from the parties. We will follow the order of out
10 items in that agenda. And the agenda is -- the items are as follows:
11 The review of recently decided motions; review of still pending motions,
12 or decisions, rather; status of disclosure; status of agreed facts;
13 administrative matters; calendar for future proceedings; and items
14 proposed by the parties.
15 Let me start with the recently decided motions. The following
16 decisions were recently issued, including four decisions today. There
17 was a decision on Prosecution motion to amend the Rule 65 ter list filed
18 on the 4th of May, 2009; decision on Defence motion for binding order to
19 the Registry filed confidentially on the 6th of May, 2009; decision on
20 requests pursuant to Rule 74, filed on the 6th of May, 2009; decision on
21 motion for certification to appeal Trial Chamber's decision regarding
22 stay of proceedings for abuse of process issued on the 13th of May, 2009
23 decision on motion for certification to appeal Trial Chamber's decision
24 on Defence motion for reconsideration, dated the 14th of January, 2009
25 issued on the 13th of May, 2009; decision on Defence motion for leave to
Page 79
1 appeal Trial Chamber's decision regarding Prosecution witness statements
2 filed on the 19th of May, 2009; decision on Defence motion for
3 certification to appeal; decision on motion for issuance of subpoena to
4 amicus curiae Prosecutor, filed on the 19th of May, 2009; decision on
5 Defence motion pertaining to the nullification of Trial Chamber's orders
6 and decisions filed on the 19th of May, 2009; and finally decision on
7 Prosecution motion for admission of evidence from the bar table pursuant
8 to Rule 89(C), filed on the 19th of May, 2009.
9 Have I missed out any decision that's outstanding according to
10 the parties? I am aware, Mr. MacFarlane, that there is a decision
11 outstanding on the motion, Prosecution motion, to expedite the trial. In
12 the view of the Chamber, these proceedings this afternoon and as we will
13 see later in the agenda, that decision will be rendered moot. And it is
14 not the intention of the Chamber, therefore, to issue a decision on that
15 one. Thank you.
16 Okay. May we then move on to the status of disclosure. Are
17 there any remaining disclosure obligations under the rules which need to
18 be fulfilled, Mr. MacFarlane?
19 MR. MacFARLANE: Thank you, Your Honour. On my review of the
20 rules and the material that's been provided, it's my assessment that
21 disclosure has been provided. My learned friend and I have had some
22 correspondence on other matters. He's requested some matters, and I've
23 responded, and there's areas that are in dispute, but from my perspective
24 disclosure has been provided in accordance with the rules.
25 JUDGE MOLOTO: Mr. Khan.
Page 80
1 MR. METTRAUX: Good afternoon, Your Honour.
2 JUDGE MOLOTO: Good afternoon, sir.
3 MR. METTRAUX: As mentioned by the amicus Prosecutor there is one
4 outstanding matter. The Prosecutor last week, in the course of last week
5 has indicated that he would respond positively to a request made by the
6 Defence in relation to the disclosure of some material and information
7 that we've sought. This is the only outstanding matter in our belief
8 that remains to be dealt with.
9 JUDGE MOLOTO: Okay. So it can be recorded that this will be
10 finalised very quickly, because there's agreement between the parties at
11 this stage.
12 MR. METTRAUX: We would hope so, Your Honour.
13 JUDGE MOLOTO: Thank you so much.
14 Then if there isn't anything else on that, we will move on to the
15 status of agreed facts. In the Prosecution's statement of admissions of
16 the parties and matters not in dispute dated the 6th of February, 2009
17 it is indicated that there may be more agreed facts before trial.
18 Subsequently, on the 9th of February, 2009, the Defence filed what was
19 entitled a motion pursuant to Rule 65 ter which set forth additional
20 facts in an annex which the parties purportedly agreed were not in
21 dispute.
22 Just to clarify, is this -- is it the position of the parties
23 that the facts set forth in these two filings are agreed between the
24 parties and to be considered as evidence by the Trial Chamber? You want
25 to take the first part of the --
Page 81
1 MR. KHAN: Your Honour, just for one clarification for the
2 record. It's quite correct that the first filing put forward by my
3 friend the amicus Prosecutor is dated the 6th of February. The Defence
4 motion where further agreed facts were set out is, I believe, dated the
5 7th of February, and those facts are agreed as far as the Defence are
6 concerned.
7 JUDGE MOLOTO: You're sure.
8 MR. KHAN: It's not --
9 JUDGE MOLOTO: The date 9th of February here, I think refers to
10 the filing date.
11 MR. KHAN: Your Honour, that may be -- that may be so.
12 [Overlapping speakers] ... check that. But the document itself is dated
13 on its face the 7th.
14 JUDGE MOLOTO: Thank you so much, Mr. Khan.
15 And are there no further developments with regard to agreed
16 facts?
17 Mr. --
18 MR. MacFARLANE: First of all I should say I agree with my
19 learned friend in terms of the status of agreed statement of facts, but
20 to my knowledge, there are no further areas of agreed facts.
21 JUDGE MOLOTO: Okay.
22 MR. MacFARLANE: That's the extent of it.
23 JUDGE MOLOTO: That's the extent of it. Thank you so much.
24 Let's move to what is entitled administrative matters. The
25 Chamber is not in possession of an English translation of the Flammarion
Page 82
1 contract admitted by the recent decision of the Chamber on the bar table
2 motion by the Prosecutor. Do you want to say something on that,
3 Mr. MacFarlane?
4 MR. MacFARLANE: Yes. Thank you, Your Honour. Translation is in
5 process as we speak, and I expect will be completed as soon as possible.
6 JUDGE MOLOTO: Okay. Then you -- I guess I need not say anything
7 further about that. As soon as possible. How -- how soon?
8 MR. MacFARLANE: Your Honour, the requested date for the
9 translation was the 29th of this month, but if we receive direction from
10 the Chamber, we will arrange to have that date changed and brought
11 forward if necessary.
12 JUDGE MOLOTO: Is it possible?
13 MR. MacFARLANE: I understand it is.
14 JUDGE MOLOTO: Given the schedule of the people who are doing the
15 translation?
16 MR. MacFARLANE: My understanding is it is possible.
17 JUDGE MOLOTO: If it is possible, can we bring it as forward
18 as -- is possibly --
19 MR. MacFARLANE: We will communicate that as soon as we're
20 finished here.
21 JUDGE MOLOTO: Okay.
22 You wanted to say something.
23 MR. METTRAUX: Yes, Your Honour there are two short issues
24 pertaining to the translation. The first one pertains to the transcript
25 of a CD which Your Honours have admitted by a decision of this morning.
Page 83
1 And the query that we have is whether or not the Prosecutor intends to
2 submit the transcript to CLSS with a view to ensure the accuracy of the
3 record. We've indicated in our response to their application some
4 concern about the accuracy and completeness of the record and transcript
5 that was made of this conversation, and --
6 JUDGE MOLOTO: Can we take a step back before you go to the
7 accuracy. Do we know who translated that? Was it not translate by CLSS?
8 MR. METTRAUX: Your Honour, we understand from the face of the
9 record that there were complaints made in particular by our client and
10 her then-counsel as to the quality of the interpretation that was given
11 to her words. What we wonder is whether the Prosecutor would be good
12 enough to indicate first who, in fact, did the translation, and secondly,
13 whether the matter has been submitted to CLSS for the purpose of accurate
14 translation. The completeness, Your Honour, is also an issue that we
15 would wish to raise to the extent that some of the word heard or
16 pronounced during the interview have not been re-transcript [sic] on the
17 transcript.
18 JUDGE MOLOTO: Now let me be sure I understand what you are
19 saying. The interview was recorded somewhere electronically, wasn't it?
20 MR. METTRAUX: That's correct, Your Honour.
21 JUDGE MOLOTO: After the recording, whatever language it was
22 recorded in, it was also transcribed.
23 MR. METTRAUX: That's correct.
24 JUDGE MOLOTO: And what has been filed this morning is the
25 transcript that comes out of the recording.
Page 84
1 MR. METTRAUX: That's correct again.
2 JUDGE MOLOTO: And when did your client complain about the
3 accuracy of that transcription?
4 MR. METTRAUX: It was made at the time, Your Honour, during the
5 interview. During -- in several parts of the transcript there are
6 complaints about the inaccuracy of her words as communicated to the
7 Prosecutor. Therefore, the translation, as far as the English --
8 JUDGE MOLOTO: But the words of your client will have been
9 recorded directly in the electronic machine at the time of speaking.
10 MR. METTRAUX: Well, our concern, Your Honour, is precisely this:
11 That the transcript which is in English does not accurately reflect the
12 content of the CD.
13 JUDGE MOLOTO: Yes, but -- what I -- sir, has your client -- I'm
14 trying to understand how your client during the interview could complain
15 about a transcription that was to be made subsequent to the interview.
16 MR. METTRAUX: Sorry, Your Honour, if I wasn't clear. She wasn't
17 complaining about the transcription at the time. What she was
18 complaining about is the quality of the translation that was being made.
19 The translation, perhaps, and I should give that background information,
20 was not made by an independent interpreter or qualified interpreter, as
21 we understand. It was being done by an assistant or a colleague of
22 Mr. MacFarlane. And in the course of that interview she complained about
23 the poor quality of the translation that was made of her word. And our
24 concern, Your Honour, is that this poor translation is reflected into the
25 transcript.
Page 85
1 JUDGE MOLOTO: But what I'm saying is what your client said
2 during the interview, her own words were recorded.
3 MR. METTRAUX: The French, as we understand, Your Honour, is not
4 recorded. What we understand was recorded was the translation that was
5 made of what was believed to be said by her.
6 JUDGE MOLOTO: Am I to understand that during the recording of
7 the interview there was a start, stop, start, stop? When she spoke in
8 French, they switched off, and then when somebody translated, they
9 switched on?
10 MR. METTRAUX: We believe that as far as the mechanism are
11 concerned, only the Prosecutor could clarify this matter. We understand
12 that the recording was continual, but that's only the English was
13 translated, that is, the English of Mr. MacFarlane and the English of the
14 interpreter. And I would stand corrected if that's inaccurate.
15 JUDGE MOLOTO: Mr. MacFarlane -- or before I go to
16 Mr. MacFarlane. I am trying to make a distinction here between any
17 interpretation to your client during the interview if she needed an
18 interpreter at all and the recording of the interview itself and then the
19 subsequent translation and transcription of the recording.
20 MR. METTRAUX: What we understand, Your Honour, is that the
21 transcription is, or should be, at least, a correct transcription of what
22 was said in English. Our concern is whether the translation that was
23 made at the time of the interview accurately portrays the content of what
24 would our client was saying. And to the extent that it can be determined
25 from the CD and from her complaint, we wonder whether it would be a good
Page 86
1 idea to ensure the accuracy of what was said to transmit it to CLSS.
2 JUDGE MOLOTO: Mr. MacFarlane, do you have any response to what
3 your colleague is saying?
4 MR. MacFARLANE: With the greatest of respect to my learned
5 friend, I think that there's some confusion that's crept into his filings
6 and his submission today. And I recognise the fact that my learned
7 friend wasn't there at the time, so I'm taking that into account.
8 What happened was this: At the time of the interview which took
9 place in the accused's counsel boardroom, it was agreed that I would pose
10 questions to the accused in English, she would respond in French. And I
11 had the benefit of an interpreter, not a translator but an interpreter,
12 in essence whispering in my ear so that I understood fully. I have a
13 capacity in French but not a full capacity, so I could understand the
14 nature of the response. That was not -- that was simply for my
15 assistance in the process. It was never intended to form part of the
16 evidentiary record at all. It was not part of the evidence that we're
17 tendering. That was simply to assist me in the back and forth between
18 the accused and myself.
19 JUDGE MOLOTO: In what language did the accused speak to you,
20 sir?
21 MR. MacFARLANE: The accused spoke in French. I supposed
22 questions in English. And she indicated that she understood the
23 questions that were being posed in English.
24 JUDGE MOLOTO: Now, if you say the accused spoke to you in
25 French, did she have any interpretation of what you were saying in
Page 87
1 English into French?
2 MR. MacFARLANE: No. She indicated that she didn't need that.
3 Then if --
4 JUDGE MOLOTO: The roles were reversed here. She didn't need an
5 interpreter. You needed an interpreter.
6 MR. MacFARLANE: Yes.
7 JUDGE MOLOTO: And the interpreter was whispering into your ear.
8 She was not telling everybody --
9 MR. MacFARLANE: Yes.
10 JUDGE MOLOTO: Sorry, can we sit in one court --
11 MR. MacFARLANE: If I may just --
12 JUDGE MOLOTO: Madam Hartmann. Sorry, just a second.
13 MR. MacFARLANE: Yes.
14 JUDGE MOLOTO: If you do want to chat to your counsel,
15 Madam Hartmann, do so quietly, please. Thank you.
16 Yes, sir.
17 MR. MacFARLANE: Sorry, Your Honour. It was intended for my
18 benefit, it may well be that others in the room heard portions of it.
19 That's entirely possible, but in terms of the purpose of the
20 interpretation, it was solely for my benefit so that I would understand
21 in more detail the nature of the answer that was being provided. I -- I
22 have, as I said before, I had a capacity to understand, but I wanted to
23 make sure that I understood better.
24 JUDGE MOLOTO: Let me find this out. If Madam Hartmann spoke in
25 French and you spoke in English, was her French response recorded?
Page 88
1 MR. MacFARLANE: Yes, it was. My question in English and her
2 response in French were both fully recorded.
3 JUDGE MOLOTO: Right. And what happened to the recording? Was
4 there -- was the recording then submitted somewhere for translation?
5 MR. MacFARLANE: Yes, it was. It was --
6 JUDGE MOLOTO: And where was it submitted to, sir?
7 MR. MacFARLANE: It was submitted to the Tribunal. It's my
8 understanding it was CLSS that did the translation. I think what my
9 learned friend is referring to is that some -- so that the exchange -- my
10 English posing of the question is -- is transcribed in English.
11 Madam Hartmann's response to my questions was translated into English.
12 On occasion in the transcript the CLSS appears to have included some of
13 what I'll refer to as the whisperings to me. I think that's what my
14 learned friend is referring to. On -- often it will say unintelligible
15 or a portion, but those were the whisperings to me to assist me. That's
16 not -- I'm not tendering that. That's not part of the evidence. What is
17 the evidence is the transcription of the exchange between the accused and
18 I.
19 JUDGE MOLOTO: Thank you, Mr. MacFarlane.
20 Mr. Mettraux?
21 Mr. Khan?
22 MR. KHAN: Your Honour, forgive me. Perhaps I can try to assist,
23 at least to the best of my limited abilities.
24 Your Honour, the nub of the issue is, and what my learned friend
25 fails to grasp in my respectful submission, is that acting at that stage
Page 89
1 as the amicus investigator, it is inappropriate for him to make a
2 unilateral assessment as to my client's ability and facility in the
3 English language.
4 JUDGE MOLOTO: Mr. --
5 MR. KHAN: Your Honour, under Article 21, there are minimum
6 rights. Now, Your Honour, the difficulty is this, that whilst the
7 transcript does detail purportedly the question in English and the reply
8 of my client in English, the original in French, which is on the tape or
9 on the electronic recording device, is not detailed, and we are not
10 certain and it does not appear from the best of our ability that has been
11 accurately or properly or independently translated. Rather, the converse
12 is true, that the translator selected by the Prosecutor, not certified,
13 to the best of our knowledge, not independent, has taken it upon herself
14 to whisper in the ear of the amicus Prosecutor and those utterances,
15 those mutterings and whisperings and also those purported translations
16 are recorded in the transcript. And it is rather a muddled state of
17 affairs, and this is what my learned friend himself concedes at the
18 moment.
19 So, Your Honour, all we're asking for, this ambiguity can easily
20 be remedied. This confusion can be easily be easily obliterated by
21 submitting the original electronic recording device to the court
22 interpretation service and asking them to translate from the French, I'm
23 sorry to say it, from the horse's mouth, from the French directly to the
24 English, and then of course just transcribe what my learned friend says
25 in English. And that way we would have a completely accurate record
Page 90
1 without any -- [Overlapping speakers]
2 JUDGE MOLOTO: This is what he says has been done except in their
3 diligence they translated even the whisperings. But I've just been told
4 now before you stood up that the translation and the transcription was
5 done by CLSS.
6 MR. KHAN: Well, Your Honour, if my learned friend's undertaking
7 to the Court is that what is transcribed is not the translation of his
8 interpreter but is the actual words of my client, then of course I'm
9 willing to accept his undertaking in that regard.
10 JUDGE MOLOTO: This is what's just said.
11 MR. KHAN: Well, Your Honour, if that's the case, I will accept
12 counsel's undertaking.
13 JUDGE MOLOTO: Thank you very much.
14 Then another point I wanted to raise with respect to the issues
15 that those very filings related to those recordings, at this stage I
16 personally have not sort of gone through them yet, but Mr. MacFarlane,
17 you might perhaps be able to guide us here. There may or may not be
18 confidential utterances in -- in those transcriptions, and it would be
19 helpful if sometime, at the appropriate time, before the trial begins,
20 you can indicate -- maybe both the parties can indicate which of the
21 documents should be public and which confidential.
22 At this stage, I guess we'll ask Registry to keep them
23 confidential until such time as you have given advice on which are
24 public.
25 Okay. That disposes of that point.
Page 91
1 MR. KHAN: Your Honour, just one related matter. The other issue
2 which would be of huge assistance is my learned friend has indicated that
3 there are aspects of that transcript that he realise upon and aspects
4 that he does not rely upon. It would be useful for the Defence to be on
5 notice as to those exact parts. And I would ask that an order be given
6 that he delete, it can be even with a pen, he should delete those
7 portions of the transcript which he says he is not relying upon so we
8 don't need to concern ourselves with those portions. I think that's only
9 fair as a matter of case management.
10 JUDGE MOLOTO: I heard him to say that the whisperings into his
11 ear. So I would imagine that what then should be of importance to the
12 parties is where your client is speaking and where Mr. MacFarlane is
13 speaking. Where anybody else is speaking other than your client's
14 counsel, if she had counsel at the time, if there's any fourth person
15 around, that person must be deleted.
16 MR. KHAN: Your Honour, that's quite right. But all I'm asking
17 is that the person that's prosecuting my client clean up the record so I
18 don't have to muse what are whisperings and what is evidence. And it's
19 not an onerous task; it's a task that would happen in any court anywhere
20 in the world, that those portions of the interview that he's not relying
21 upon to prove his case should be either marked, identified, or redacted.
22 Your Honour, it's a very simple task, and it's one that would not put
23 over -- would not compel my learned friend to overly exert himself. And
24 I would ask formally for an order in that regard.
25 JUDGE MOLOTO: Mr. MacFarlane.
Page 92
1 MR. MacFARLANE: Thank you, Your Honour. I think that that
2 actually would be helpful to everyone. I'm quite prepared to go through
3 on a line-by-line basis and excise those areas that I referred to as
4 whisperings. That's probably not a totally accurate description, but
5 those portions that were interpretations simply for my benefit that are
6 not part of the evidentiary record and which I'm not tendering. So I'm
7 quite happy to do that.
8 JUDGE MOLOTO: If it is possible to delete them or redact them
9 somehow, it would be helpful. Thank you very much.
10 MR. MacFARLANE: Thank you.
11 MR. KHAN: And, Your Honour, related to that, it's a side issue
12 to an issue Your Honour mentioned earlier is the Flammarion contract.
13 Your Honour of course has asked that that be translated. But again, just
14 as a matter of case management, it would be of assistance to me if my
15 learned friend can go through and highlight what portion of that contract
16 he's relying upon, because of course we've read the pre-trial brief of my
17 learned friend, but it's not clear to me the basis upon which he is
18 adducing that contract and the purpose for which it's being tendered. So
19 it may be that one portion is a matter of dispute or controversy or could
20 otherwise be agreed. So --
21 JUDGE MOLOTO: I think -- I think that's a matter to be raise at
22 trial, Mr. Khan.
23 MR. KAHN: Well, Your Honour, so be it.
24 JUDGE MOLOTO: [Overlapping speakers]... at trial, what portion
25 of the contract he is relying on.
Page 93
1 THE INTERPRETER: Could counsel please slow down please.
2 JUDGE MOLOTO: At this point, it's a question of disclosure.
3 He's disclosed to you the contract that he's going to rely on, and he
4 will tell you when he gets to trial what portion of it he is going to
5 rely on, if he's relying on a portion only. I don't know whether he's
6 relying on a portion only or on the entire document.
7 MR. KHAN: Yes, Your Honour, I take the point with the greatest
8 of respect, but it does go down to proper notice. It's not clear to me
9 the relevance of this document, and it's not -- it's not touched upon in
10 the pre-trial brief either. And ordinarily the pre-trial brief together
11 with the supporting documents is to alert counsel as to the facts in
12 issue and the focus of the Prosecutor's case. Given that I have not a --
13 the merest idea as to the relevance of the contract itself, I am asking
14 either that he go through and point out the portions of the contract that
15 are relevant or at least maybe a 30 second spiel, elaborate the purpose
16 for which he is tendering the document so that I can properly prepare.
17 JUDGE MOLOTO: But has he told you the purpose for which he is
18 tendering any other document?
19 MR. KHAN: Well, Your Honour, ordinarily according to the
20 jurisprudence of the Tribunal, the pre-trial brief can be taken in
21 conjunction with the documents that are disclosed, 65 ter documents and
22 the like, to put parties on proper notice. One doesn't simply bring a
23 wheelbarrow in of documents and say somehow it's tangentially relevant.
24 I would ask for some specificity in that regard, and it needn't -- I'm
25 quite content for my learned friend to stand up now and just illuminate
Page 94
1 me.
2 JUDGE MOLOTO: Mr. MacFarlane.
3 MR. MacFARLANE: Thank you, Your Honour. I think that perhaps
4 what my learned friend should do is check his earlier e-mails because we
5 did have an exchange back and forth on this, and I outlined the reason
6 for which the evidence is being tendered. So he already has that in his
7 possession.
8 JUDGE MOLOTO: Thank you, Mr. MacFarlane. Okay.
9 Let me just say by way of caution and by way of indication of how
10 we run the trial in this court, sir, counsel is very welcome to either
11 prosecute or defend his counsel's case as vociferously as one can, but I
12 think we should stay within the realms of courtesy. You're talking here
13 of one document. I don't know how thick the document is, could hardly be
14 referred to as a wheelbarrow of documents.
15 MR. KHAN: Your Honour, I accept with due humility the
16 admonition, but perhaps the frustration is caused by issues that we have
17 raised, that we haven't benefitted from statements in this case. That is
18 the context.
19 JUDGE MOLOTO: We are all frustrated, sir.
20 MR. KHAN: Yes.
21 JUDGE MOLOTO: We are all -- our nerves or all on edge.
22 MR. KHAN: Yes.
23 JUDGE MOLOTO: But nonetheless we stay within the bounds of
24 courtesy.
25 MR. KHAN: Your Honour, if it's not a wheelbarrow, it's certainly
Page 95
1 a suitcase, because I have three files in front of me, and that's only a
2 portion of the documents and filings in this case.
3 JUDGE MOLOTO: I'm talking of the document that you say is
4 tangentially relevant, maybe tangentially relevant. I'm talking about
5 the contact. I don't know anything about it. I don't know how thick
6 this document is. But we're talking about one document here; we're not
7 talking about the entire disclosure.
8 MR. KHAN: Well, Your Honour, I will move on. And I take
9 admonition on board.
10 JUDGE MOLOTO: Thank you very much.
11 Shall we then go to the calendar for future proceedings.
12 On the 8th of January, 2009, the amicus Prosecutor filed his
13 pre-trial brief in this case, and on the 15th of January, 2009, the
14 Defence filed its pre-trial brief in the case. No additional procedural
15 requirements stand in the way for scheduling the case for trial. The
16 Chamber is therefore scheduling the case for trial in the week of 8th to
17 the 12th of June 2009.
18 Scheduling Order will follow, but first I would like to hear the
19 parties' views on how much time you consider to be necessary for the
20 presentation of your cases. And I know that this has been given
21 previously. The Prosecution had requested six hours, and the Defence
22 requested 13 hours, but that included three hours to call the Prosecutor
23 as a witness. I'm not quite sure what the position is, and I think there
24 is also a witness that the Prosecution has dropped. Okay.
25 Are you able to start, Mr. MacFarlane?
Page 96
1 MR. MacFARLANE: In terms of the case per se excluding argument
2 and other things, the case per se.
3 JUDGE MOLOTO: The hearing of evidence.
4 MR. MacFARLANE: Pardon me?
5 JUDGE MOLOTO: The hearing of evidence, the calling.
6 MR. MacFARLANE: [Overlapping speakers]... Yes, the hearing of
7 evidence. That would include the tendering of the documentary evidence
8 and viva voce evidence. My best assessment is four or five hours.
9 Probably four.
10 JUDGE MOLOTO: And, Mr. Khan?
11 Are you done?
12 MR. MacFARLANE: Yes. Thank you.
13 JUDGE MOLOTO: Mr. Khan.
14 MR. METTRAUX: Thank you, Your Honour. We'd seek leave from the
15 Chamber if it is feasible perhaps to give a -- a clear undertaking later
16 today if that is acceptable to the Chamber. There maybe some scheduling
17 issues for one of the counsel in this case, and we would like to, with
18 the leave of the Chamber and with the kindness in this case of the
19 Chamber, if we could be given a couple of hours after the hearing to go
20 through this matter and try to facilitate it. As far as the length of
21 the Defence case is concerned, Your Honour has indicated the position and
22 the request of the Defence. We believe it is a reasonable amount of time
23 for the evidence which we propose to present to the Chamber. We would
24 also like to seek an indication, perhaps not as to the time, but a
25 general idea as to the time allotted to each party for closing argument
Page 97
1 which would be of assistance to the Defence in terms of preparation.
2 JUDGE MOLOTO: Mr. Mettraux, I'm not quite sure what your
3 position is. You start off by saying you would like to give an
4 undertaking today if it's acceptable to the Chamber, but then you go on
5 to say that the Chamber has indicated the position that the Defence had
6 requested, and you believe that that is a reasonable amount of time.
7 MR. METTRAUX: Yes.
8 JUDGE MOLOTO: Now, do you want to tell us later what time you're
9 going to use, or are you saying the time you gave us last time you stand
10 by?
11 MR. METTRAUX: We do stand by, Your Honour, as to the time. The
12 issue that we have is one of the dates, the 8th to the 12th of June. And
13 with leave of the Chamber, we would respectfully ask that this matter be
14 considered further by the Defence. As indicated, there is a conflict of
15 schedule for one of the counsel at least, and we would wish to organise
16 and ensure that this is not the case so that we can indicate to the
17 Chamber later today that we don't have a clash of schedule. As far as
18 the time necessary for the Defence, we stick to our previous position,
19 Your Honour.
20 JUDGE MOLOTO: Okay. Now let's talk about the scheduling. As
21 you sit there, are you saying, sir -- as you sit there and stand there
22 are you saying, sir, that the period 8th to the 12th would not be
23 suitable to the Defence?
24 MR. METTRAUX: That's correct, Your Honour. What we would wish
25 to do, however, is to ensure that this is feasible. And this is what we
Page 98
1 would wish to undertake in the later part of the afternoon.
2 JUDGE MOLOTO: Okay. Thank you so much. When you do advise the
3 Chamber later this afternoon, can you also copy the Prosecution?
4 MR. METTRAUX: Certainly, Your Honour.
5 JUDGE MOLOTO: Thank you.
6 Okay. And a final decision of the Chamber on the number of
7 witnesses and length of the Prosecution case will be formally rendered at
8 the Pre-Trial Conference on the first day of trial, okay.
9 Now, items proposed by the parties. The parties, as I
10 indicated -- were to indicate by close of business yesterday whether they
11 wished to propose any items for consideration at the status conference.
12 The Defence this morning after the deadline proposed the following items
13 they might wish to raise. I'm not sure whether they are going to raise
14 them or have you decided to -- not to raise?
15 MR. METTRAUX: Well, Your Honour, thank you very much. Most of
16 them have now been dealt with by Your Honour, so there's no need to go
17 further into those. There are two issues, however, that we would wish to
18 bring to the further attention of the Chamber.
19 The first one pertains to the Rule 65 ter list of the Defence.
20 At this stage there's a number of documents that we're going through and
21 which we may wish to add to our Rule 65 ter list. We will give a list
22 this afternoon of those proposed documents to the Prosecutor so that he
23 can review them, review the list in question. There is also the
24 possibility, Your Honour, of a supplementary or an application for an
25 amendment to the Rule 65 ter list of witnesses. We are now considering
Page 99
1 the possibility of two additional witnesses. We also are considering the
2 possibility of having those witnesses 92 bis'd with a view to expedite
3 matter. This will be done as soon as possible and as soon as practical.
4 The second issue, Your Honour, is related to the one that I have
5 just mentioned, and it is the fact that the Defence is still seeking to
6 conduct limited investigation which could lead to one of these witnesses
7 being proposed as an additional witness. Thank you.
8 JUDGE MOLOTO: Thank you very much. Mr. MacFarlane, I know you
9 didn't respond. You don't have anything you want to add to the agenda?
10 MR. MacFARLANE: Thank you, Your Honour. I did not respond
11 because until the end of yesterday, I didn't have any additional issues.
12 But there is one issue that I would like to raise arising from one of the
13 decisions this morning, if I might address the Chamber on that.
14 JUDGE MOLOTO: Yes, please.
15 MR. MacFARLANE: In the decision concerning the issue of a
16 subpoena on the amicus, there's a footnote. I believe it's footnote 25
17 which, along with the accompanying text, refers to potential reference of
18 posing questions to the Prosecutor with a view to eliciting answers. And
19 the issue I'd like to raise is in order to ensure that we have an orderly
20 process and a meaningful process, it seems to me that two things need to
21 be addressed, perhaps by way of guidelines so that we know how this could
22 unfold if my learned friend intends to use that suggestion. Guidelines
23 would be helpful for both counsel, I expect, and my -- my overarching
24 suggestion is that the Chamber control and manage the process, as opposed
25 to it being a counsel process, which would include at least two elements.
Page 100
1 First of all, the questions, if they are to be posed, be posed well in
2 advance of the trial so there's an opportunity to review documents and
3 obtain documents if that's necessary in order to respond accurately. It
4 would not, in my respectful submission, be helpful to pose the questions
5 on the day of the trial or in the middle of a trial. I think that they
6 should be developed and posed in advance so that we can have an orderly
7 process.
8 And secondly -- so that's an issue of timing. Secondly, I
9 respectfully submit that there ought to be a review by the Chamber of the
10 appropriateness of the question that's being posed to ensure that it is a
11 proper question, that it is focussed, that it's not intended to elicit
12 information which is not properly receivable, and so on. So I'm
13 suggesting firstly, a timing issue; and secondly, a review issue on the
14 part of the Chamber.
15 The questions that my learned friend has been posing to me in the
16 past several weeks, if not several months, have been extremely broad and
17 almost incapable of answering. They -- perhaps for the record I could
18 outline one of the most recent questions that was received to give the
19 Chamber a flavour of the -- of the types of questions that could be
20 posed, and I have no reason to believe that they won't be along these
21 lines.
22 On May 1st, which is only two and a half weeks ago this question
23 was posed subsequent to my providing some documents to my learned friend.
24 So documents were provided; this is a follow-up. And the question was
25 this: In addition to the records of contacts/communications that you
Page 101
1 have already disclosed to us, there have -- has there been other contacts
2 in whatever form between yourself or your staff and representatives of
3 the Chamber or Registry as regard the conduct of your investigation or
4 prosecution of the case, including the manner thereof, the course or
5 focus of your investigation, the nature of your findings, and any other
6 matter pertaining to the carrying out of your mandate as investigator
7 and/or Prosecutor that took place and for which your record has not yet
8 been disclosed to the Defence?
9 As the Chamber can appreciate, that's an incredibly broad
10 question. Could well be characterized as a fishing expedition. But it's
11 become even worse in the past week or so because my learned friend
12 recently wrote to me and said, In addition to the documents that you're
13 seeking, it would be helpful if you could give us recollections of
14 contacts with all of these people, if there were any.
15 So my point is that there needs to be a Chamber review of the
16 appropriateness to ensure that Rule 70(A) is not being violated and other
17 principles embraced by the Tribunal are not being violated. Thank you.
18 JUDGE MOLOTO: Thank you. Do you want to respond to that,
19 Mr. Mettraux?
20 MR. METTRAUX: Very briefly, Your Honour, since the matter is
21 still pending with the Prosecution. We would simply indicate as a
22 response that the problem we're encountering, Your Honour, is in a
23 traditional form the Defence would have an opportunity to examine or
24 cross-examine the person competent and responsible for the investigation.
25 In this case we find ourself in the difficult position and understand the
Page 102
1 difficult position of our colleague as well of having to be that person.
2 What we would specify, however, in relation to the breadth, Your Honour,
3 is, yes, our colleague has mentioned one e-mail. However, it is to be
4 read in the context of many search e-mails that we've sent and that
5 specified what we were looking for and what we were after. Furthermore,
6 as indicated, the Prosecutor has accepted now to provide us with the
7 material that we seeking and which is very clear on its substance. I
8 don't wish to say more, Your Honour, at this stage. As indicated, the
9 Prosecution has now accepted to give us the information that he is
10 complaining about.
11 I would just add this, Your Honour. In relation to the
12 suggestion that we made to the Prosecutor that he should provide us with
13 his recollection of those meetings. The reason for this, Your Honour,
14 was the Prosecutor indicated to us that he was unable to provide us with
15 the actual records of those meetings which he said were in another
16 country. The solution that we found to expedite matter was to ask him to
17 provide us at this stage and pending his delivery of the material with
18 his recollection. It was simply a practical solution to expedite matter.
19 We were not asking for something extraordinary but searching for a way to
20 facilitate things.
21 JUDGE MOLOTO: Okay. Thank you so much. I think the Chamber has
22 noted what the parties have said on the point, and we'll look into the
23 matter. Thank you so much.
24 Was that all you had, sir?
25 MR. MacFARLANE: Yes, it is, Your Honour. Thank you very much.
Page 103
1 JUDGE MOLOTO: Okay. It does seem as if there is nothing else.
2 Nothing from the Chamber's side, nothing from the Defence side.
3 Mr. --
4 MR. KHAN: Your Honour, just perhaps just one matter, with your
5 leave, that wasn't touched upon. My learned friend has asked that in the
6 event that we're granted leave to call -- call him as a witness, advance
7 notice be given of questions. Your Honour, of course that's a matter for
8 your discretion in due course, but --
9 JUDGE MOLOTO: But are we talking about the same thing? I
10 thought he was talking about him being asked questions not being called
11 as a witness. You're talking about being called as a witness.
12 MR. KHAN: Well, Your Honour, if we are asking questions, of
13 course we've had communication, and we are getting a response from my
14 learned friend. Of course, we say rather late in the day. But if there
15 is a nonresponse, we are quite content to make application and file it
16 with the Trial Chamber for the appropriate relief. So it needn't concern
17 Your Honour.
18 JUDGE MOLOTO: Let's not -- [overlapping speakers]
19 MR. KHAN: [Overlapping speakers]... overly much.
20 JUDGE MOLOTO: If we're talking about calling the amicus curiae
21 as a witness, we talk about that. If we talk about asking him questions,
22 we talk about asking him questions. I don't think we should mix the two
23 in one. He was responding to the issue of a footnote to a decision which
24 refers to him being asked questions, and I do not -- I have no special
25 recollection of that footnote, but what I am saying is the issue he's
Page 104
1 raising is being asked questions not being called as a witness, and these
2 are two different things.
3 MR. KHAN: Your Honour, I am grateful. But when one asks
4 questions to the opposing party, it's completely at large. The
5 Prosecution can ask any question of us, and we can ask any question that
6 we deem appropriate to the Prosecutor. Now, of course the response is
7 not a matter of compulsion; it's a matter of volition. And if either
8 party, whether it be the Prosecutor or the Defence, feel aggrieved there
9 are appropriate remedies. So in any event, the order requested is
10 unnecessary, in my submission.
11 JUDGE MOLOTO: Okay. Thank you so much.
12 It looks like that brings us to the conclusion, unless somebody
13 you -- you are looking at me, Mr. MacFarlane, as if you have a last word
14 to make.
15 MR. MacFARLANE: Only for the purposes of being absolutely clear.
16 And I'm not sure if my learned friend has had an opportunity to read the
17 decisions and consider the decisions from this morning. But just for the
18 sake of the record and to be absolutely clear, what I was referring to
19 was the decision rendered today, the 19th of May, with respect to the
20 issuance of a subpoena to an amicus curiae Prosecutor. And I'm referring
21 in particular to paragraph 7 and 8 and footnote 25. That's all that I'm
22 referring to. I'm not talking about the issue of being called as a
23 witness.
24 JUDGE MOLOTO: Thank you so much.
25 MR. KHAN: I'm grateful. Your Honour, I hadn't seen that
Page 105
1 decision. It hasn't arrived in my in-box.
2 JUDGE MOLOTO: Thank you. Okay. Then that brings us to the end
3 the Status Conference, and the conference stands adjourned. Court
4 adjourned.
5 --- Whereupon the Status Conference adjourned
6 at 3.19 p.m.
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