Tribunal Criminal Tribunal for the Former Yugoslavia

Page 136

1 Tuesday, 14 February 2006

2 [Status Conference]

3 [Open session]

4 [The accused Balaj and Brahimaj enter court]

5 --- Upon commencing at 10.23 a.m.

6 JUDGE BRYDENSHOLT: -- but we have decided to go on and I hope

7 everybody is agreeing on that so we don't miss any further time. I see

8 that both the accused present here in The Hague are in their seats. And I

9 would ask then the registrar to call the case, please.

10 THE REGISTRAR: Yes. Thank you, Your Honour. The case is

11 IT-04-84-PT, the Prosecutor versus Ramush Haradinaj and other.

12 JUDGE BRYDENSHOLT: Yes, thank you. And Mr. -- Mr. Balaj, could

13 you hear the translation or there is difficulty?

14 THE ACCUSED BALAJ: [Interpretation] I can hear it at the moment.

15 Yes, thank you.


17 Mr. Brahimaj, can you hear the translation?

18 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, I can hear you.


20 Well, then, we should hear the appearances for the Prosecution

21 today.

22 MR. DUTERTRE: [No interpretation]


24 And for Defence. First for the Defence of Mr. Haradinaj.

25 MR. EMMERSON: Your Honour, Ben Emmerson, together with

Page 137

1 Mr. Rodney Dixon and Mr. Michael O'Reilly, appearing today for

2 Mr. Ramush Haradinaj.


4 And for Mr. Balaj.

5 MR. GUY-SMITH: Good morning. Gregor Guy-Smith appearing for

6 Mr. Idriz Balaj. Present also by my side is Djenti Zuberi [phoen]. He is

7 the translator for both Mr. Balaj and Mr. Brahimaj in case there's any

8 matters that need to be attended to during these proceedings immediately.

9 JUDGE BRYDENSHOLT: Oh, thank you.

10 And for Mr. Brahimaj?

11 MR. HARVEY: Richard Harvey for Mr. Brahimaj. Good morning,

12 Your Honour.

13 JUDGE BRYDENSHOLT: Good morning.

14 Well, we are all aware that this is a Status Conference in

15 accordance with Rule 65 bis of the Tribunal's Rules. And we are all aware

16 also the aim of such a Status Conference. I have been informed about the

17 Rule 65 ter Conference which took place yesterday and the Senior Legal

18 Officer who present in guiding this meeting has informed me about what was

19 happening and what we are going to discuss further today.

20 I would say orally now that after having heard about the

21 discussions -- the issues which were up for discussion yesterday, I have

22 decided that we are going to have a 65 ter meeting again in about --by the

23 end of March, in about six weeks' time. And we have thought of - but that

24 will be discussed further with the parties - we have thought of the 30th

25 March, and I have decided that I, myself, will participate during that

Page 138

1 meeting so that we can all work together in time to see this trial

2 prepared timely, as planned. So I ask the parties to have this mind

3 during this conference today so that you are aware that already in a

4 rather short time we will have a more thorough discussion on all the

5 points which has been discussed yesterday.

6 The Senior Legal Officer announced to me that we can expect an

7 amended indictment from the Prosecution. It was mentioned to me that the

8 Prosecution foresee that such an amended indictment would be presented by

9 the end of April. I hope that the Prosecution would properly be able

10 later to make it, at least in a draft stage, available for the next 65 ter

11 meeting so that we all could be informed, also I could be informed, what

12 we are -- what the Trial Chamber or I am expected to look upon according

13 to Rule 50, when we are going to look on whether or not such a change

14 could be allowed.

15 I don't know if any of the parties have any further remarks on

16 this subject on the amendment of the indictment or we could just take note

17 of what has been said already.

18 Have the Prosecution any remarks on this issue, or should we wait

19 for the 65 ter meeting? It's up to you.

20 MR. DUTERTRE: [No interpretation]

21 JUDGE BRYDENSHOLT: Well, I think it would be useful for me to be

22 informed now. Thank you. So if you will continue now. Thank you.

23 MR. DUTERTRE: [Interpretation] Thank you very much, Your Honour.

24 The OTP intends to bring four main amendments to the indictment, one only

25 will bring in the new charges. I think the Defence still hasn't heard the

Page 139

1 interpretation of this.

2 MR. GUY-SMITH: Excuse me, I hate to interrupt. We seem to be

3 having a moment of translation problems.

4 JUDGE BRYDENSHOLT: Okay. Let's try a solve it. It has been

5 solved or? Could anybody indicate, is it all right now?

6 MR. GUY-SMITH: Your Honour, it seems to be all right when we

7 speak in English. I'm not sure if it's all right when we're speaking in

8 French.


10 MR. GUY-SMITH: If --

11 THE INTERPRETER: This is a test from the interpreters.


13 MR. GUY-SMITH: All systems are go again.

14 JUDGE BRYDENSHOLT: Okay. Fine. Thank you.

15 Yes --

16 MR. DUTERTRE: [Interpretation] Three types of amendments. One

17 should lead to the creation of new counts, strictly speaking. It's very

18 simple. In several counts, I exclude for the moment 21 and 22 counts, in

19 these different counts there is an indication that a victim has

20 not -- never been seen again. When there is identification -- forensic

21 identification, OTP intends to -- I think there still is a problem --


23 MR. GUY-SMITH: Now it's solved.

24 JUDGE BRYDENSHOLT: It's solved?

25 MR. GUY-SMITH: Yeah, it's solved.

Page 140

1 JUDGE BRYDENSHOLT: Okay. Okay. Please.

2 MR. DUTERTRE: [Interpretation] I suppose, Your Honour --I perhaps

3 I should start from the beginning so the accused may have all the

4 explanations or do you wish me to continue?

5 When there is forensic identification, the OTP intends to update

6 these counts, change the sentence, giving the name of the person

7 identified. As you will see, this is not a new count; it's

8 just -- specifies matters and contributes to give an -- up-to-date

9 information.

10 The second type of amendment which is envisaged, as you know, in

11 21 and 22 counts it is said that 22 people were killed and that forensic

12 exams are ongoing to identify them there again, if we can identify them in

13 a forensic way. The name of these people will be given. It is not

14 impossible that we might create different counts for the identifications,

15 but this will be formalised and there will not be new counts. We'll

16 simply have -- we'll say that the body of the person was already counted,

17 but in place of a violation of laws and customs of war, there will be no

18 addition on the formal plain.

19 The third type of amendment, and this is more substantive,

20 essentially to add three new counts about incidents which have not yet

21 been contemplated by the indictment and which have to do, respectively,

22 with the three accused of different degrees of their taking part and to

23 the joint criminal enterprise so that they all are concerned by these

24 additions. In the counts which already exist, it might be possible that

25 we might insert a few more qualifications or specifications, marginally

Page 141

1 speaking. But those are the main lines of what we intend to do, and we

2 will endeavour to present you a draft when we will have the next

3 conference, 65 ter, end of March. Thank you.

4 JUDGE BRYDENSHOLT: That -- yes, any remarks?

5 MR. EMMERSON: Well, Your Honour, I should say I have a number of

6 points I wish to raise formally and on the record of which this forms a

7 part. And you have I think before you a schedule of dates which I shall

8 turn to in a short time when the moment arrives. On that schedule, as you

9 will see, there is an undertake that by the 23rd of February the

10 Prosecution will outline the necessary particulars of the new counts to

11 the Defence as well as the current proposals that it has for revision of

12 any existing counts. Now, I should say that despite three meetings

13 between Prosecution and Defence over the last few days since the beginning

14 of February, it wasn't until yesterday that this announcement was

15 communicated to the Defence, and as we understand it the Prosecution are

16 still, as of today, not in a position to, or certainly have not, provided

17 the Defence with any of those necessary particulars. And so we have

18 insisted upon and agreed upon the date of the 23rd of February for

19 communication to the Defence of the essential particulars.

20 JUDGE BRYDENSHOLT: Thank you. And that covers all the Defence,

21 right, I suppose? Good. We will return to this then by the end of

22 the -- this conference.

23 Then I understand also, probably we should take -- take it all

24 together after the remarks by Mr. Emmerson. We have the question of

25 redactions, and we have the question of witness statements which has not

Page 142

1 coming forward yet, I understand the -- in accordance with Rule

2 66(A)(ii). Yes, then of course there's also the statements or evidence in

3 favour of the accused according to Rule 68. All of this, of course, need

4 to be looked upon, but probably it -- it will be time for you --

5 THE INTERPRETER: Microphone for Your Honour --

6 JUDGE BRYDENSHOLT: -- a more extensive intervention.

7 MR. EMMERSON: Your Honour, I'm grateful for that. And can I say

8 that I propose to take it shortly because much of the detail was discussed

9 with the Chambers Legal Officer at the meeting yesterday afternoon, but

10 there are really five points that I need to place on the record for the

11 purposes of the status hearing today.

12 First of all, disclosure. Broadly speaking, the approach that has

13 been taken thus far to disclosure involves, as we submit, a serious

14 failure on the part of the -- of the Prosecutor to perform its disclosure

15 obligations. Virtually every time that has been disclosed thus far has

16 been the result of a specific request from the Defence. Very considerable

17 efforts have been made by the Defence to obtain disclosure, but so far as

18 the Prosecution's obligations are concerned, there has been very little

19 tangible progress since this indictment was issued. That progress or,

20 rather, the lack of it was reviewed yesterday afternoon, and I don't

21 propose to go into details because it seems to me at this stage that is

22 not productive.

23 But as a result of the difficulties that have been experienced and

24 perhaps, I don't know, due in part to the change of representation within

25 the Office of the Prosecutor - we're now on our fourth Prosecutor - we

Page 143

1 finally, yesterday morning, managed to agree a series of deadlines by

2 which the disclosure exercise would be conducted, because of course the

3 dates which have been set out in the draft work-plan are nothing more than

4 end dates. They don't, sadly, specify start dates and it is start dates

5 that we now need for the Prosecution to perform their obligations.

6 We, therefore, have drafted a document which you have before you

7 printed on two sides of A4 which records accurately and in detail the

8 deadlines that Mr. Dutertre agreed to submit to at yesterday morning's

9 meeting. It has been exchanged between the parties and, indeed, amended

10 at his request to reflect the present state of the agreed disclosure

11 obligations. Indeed, the wording at the top, referring to those as

12 undertakings, is Mr. Dutertre's insertion into the draft.

13 Now, I do not understand the Office of the Prosecutor to have any

14 disagreement with the substance of that document. It may be, because

15 Mr. Dutertre indicated to this -- this to me this morning that he has some

16 reservations about it being before the Chamber this morning. We do not

17 have any such reservations. Indeed, we regard it now as axiomatic that

18 the Chamber has close supervision over the obligations that the

19 Prosecution must now perform, it having hitherto failed so seriously and

20 so singularly to perform the obligations that it has. So that's the first

21 point. I'll leave Mr. Dutertre to elaborate any concerns he has about the

22 document, but as I understand it - and, as I say, we have had it passed

23 between us with amendments made - there is nothing substantively in that

24 version of the document which you have with which he disagrees. And

25 obviously, it's entire for Your Honour to decide whether that should be

Page 144

1 made an order or a clear undertaking which can then be reviewed at an

2 early Status Conference at the end of March. But we would respectfully

3 agree that an early Status Conference at which the Prosecution can be held

4 to its obligations on that occasion, rather than merely reminded of them,

5 is now essential.

6 Secondly, there is in existence on disclosure a much fuller draft

7 discussion document setting out the general principles guiding disclosure

8 that the two parties are contending for. That document is not agreed

9 because there are differences between us on some general principal issues

10 that are reflected in that document. But the parties will endeavour to

11 finalise that general document and to provide a copy to the registry as

12 soon as ever possible and certainly in advance of the next Status

13 Conference. That then is the first general heading.

14 The second general heading, and you've touched upon it already,

15 relates to redactions. And again, and with regret, I find myself having

16 to bring to the Chamber's attention another serious systematic failure.

17 This time a serious systematic breach by the Prosecution of the Trial

18 Chamber's witness protection order of the 20th of May of last year. May I

19 just briefly remind Your Honour of the approach that was taken on behalf

20 of Mr. Haradinaj to the Prosecution's witness protection application. We

21 took a good-faith approach of not objecting to redactions and anonymity

22 until the point arose in the course of the Defence investigation where

23 those redactions were obstructing preparation for trial. That point has

24 now arisen. And as a result of that, we reverted to the Prosecution last

25 month to request the lifting of certain redactions on a sample selection

Page 145

1 of witness statements. When those redactions were lifted, it became quite

2 apparent that the majority -- the vast majority of them were not even

3 arguably within the terms of the Trial Chamber's order or in any way

4 related to witness protection issues. Indeed some of the material that

5 had been redacted by the Prosecution was on its face and plainly

6 exculpatory material, which far from being redacted should have been being

7 drawn specifically to the attention of the Defence.

8 If I can give you a general indication, of the requests we've made

9 for the Prosecution voluntarily to lift the redactions that it imposed

10 because they are improper redactions, 70 per cent of those requests have

11 now been acceded to, which is an indication of the scale of the

12 over-redaction that has been taking place in this case. And indeed the

13 OTP, the Office of the Prosecutor, have reviewed a sample of the

14 statements from the next batch of requests that we have made and have

15 confirmed that a similar systematic failure is present there also, with a

16 similar ratio of 70 per cent over-redaction.

17 And I make it clear, as I did yesterday, that that process has

18 caused significant difficulties to the Defence because the material

19 redacted is essential to the investigation. It is the names, for example,

20 of individuals alleged to be perpetrators, not victims or witnesses, but

21 perpetrators for whose acts the Prosecution wishes to place at my client's

22 door, and yet they were prepared to redact the names of the principal

23 perpetrators, and Your Honour will see immediately how difficult that is

24 to make of the Defence.

25 We are told that there are insufficient resources in the Office of

Page 146

1 the Prosecutor for those remaining statements to be reviewed quickly and

2 for the redactions to be lifted. We have pressed for immediate lifting of

3 all of the remaining unnecessary and unjustified redactions, but we have

4 reluctantly been driven to impose the tightest timetable that the

5 Prosecution considers itself able to meet and as you will see from the

6 document that we have provided to you, we have requested and the

7 Prosecution have undertaken to lift the remaining redactions on the first

8 tranche of requests by the 23rd of February. That is -- you'll see that

9 in the second box under the 23rd of February, but that they require till

10 the 15th of March to lift the remaining redactions.

11 Well, may it please be clearly understood the difficulties that

12 that timetable inevitably places the Defence investigation in, but mate it

13 also be clearly understood that the 30th of March Status Conference will

14 provide the opportunity to hold the Prosecution properly to account in

15 that regard also and that then and only then will it be possible for the

16 Defence on behalf of Mr. Haradinaj, and I should imagine those acting for

17 the co-accused as well, to ascertain what it is that the Prosecution even

18 legitimately claims to be arguably necessary in terms of redactions and

19 then to consider whether it is necessary to seek the Trial Chamber's

20 assistance having redactions further focussed and lifted.

21 So that then is the second, as we submit, serious systematic

22 failure. The third difficulty I touched upon, very late notice of the

23 proposed amendments to the indictment, notwithstanding meetings that have

24 been going on since the beginning of February and the Prosecution still

25 not in a position to provide the Defence today with the names of the

Page 147

1 victims, the dates of the alleged incidents, or the precise particulars of

2 the counts and requiring until the 23rd of February for those particulars,

3 even on the new counts to be provided

4 And finally, the fourth broad heading that was touched upon by

5 Mr. Dutertre, it appears that since 2002 a process of re-examination of

6 forensic material lying at the heart of this case has been taking place.

7 And it has been taking place, no doubt, because it was apparent to anybody

8 who examined the state of the forensic evidence as it stood that it was

9 blatantly contradictory and inadequate. As a result, since 2002, we

10 understand, the remains of those referred to in the indictment have been

11 exhumed and the process of re-examination and DNA comparison conducted

12 with the offices of the International Commission for Missing Persons.

13 This is a lengthy forensic re-examination, the existence of which was not

14 communicated to the Defence at all at any time after the indictment was

15 issued and not indeed until last Thursday, the 9th of February.

16 Now, again, may I emphasise, we have in an attempt to comply with

17 the timetable set down instructed, retained a team of forensic experts to

18 begin examining the case the Prosecution went to indictment on. We're now

19 told that that case is going to change and that, in effect, the forensic

20 case will be superseded. We have no notice of that. Time and money has

21 been wasted. Our forensic team cannot get on effectively with the job

22 they have to do until they know the case they have to meet, which the

23 Prosecution is still not in a position to disclose and has indicated that

24 the earliest it can be in a position finally to disclose is the 31st of

25 May, the end of May. In other words, from the end of May the Defence will

Page 148

1 know the case it has to meet, in forensic terms in full, and the Defence

2 forensic team can conduct the investigations they ought to have been being

3 able to conduct since March of 2005.

4 What we have succeeded in doing in the timetable you have before

5 you is ringing from the Prosecution an undertaking that by the 6th of

6 March they will at least convey to the Defence the gist of the fresh

7 identifications, and you'll see the way in which that is put. The short

8 point is, and I'm sure it will be apparent to Your Honour, that the

9 Prosecution conduct of this case has been regrettable and falls seriously

10 short of what the Defence and the Tribunal are entitled to expect.

11 May I mention one final point, which obviously has some

12 interrelation with the first four. We have before us a draft work-plan

13 dated the 16th of September, 2005, which again regrettably the Defence did

14 not see in full until yesterday, and there is simply one aspect of it

15 which I would like to draw attention, since it doesn't appear, to us at

16 least, to entirely reflect the way in which the matter was left in

17 September, and that is this: It has been a clear understanding that the

18 trial is scheduled to begin in beginning of 2007 with a possibility that

19 it might move forward to the very end of 2006. And as you will see, on

20 the existing draft work-plan it appears as though a date of November 2006

21 has started to take root. I simply want to make the position clear

22 because if the current state scheduling is that there is a possibility

23 that the trial might be moved forward into 2006, towards the end of the

24 year, then plainly the catalogue of inaction that you are having to review

25 this morning, as well as the principal new developments of fresh counts

Page 149

1 and a wholly new fresh forensic investigation make it virtually impossible

2 to imagine that the process of bringing the trial date forward can now be

3 achieved. And I think it right that we place that position on record

4 today. I well understand that it may be the next Status Conference is the

5 time when that issue can be finally resolved, but let it be clear now that

6 we are in very serious difficulty. I haven't brought the issue to the

7 Chamber in these terms before, but the point has now been reached at which

8 the Prosecution, in our submission, need to be held account to do the job

9 that they are required to do. Thank you.

10 JUDGE BRYDENSHOLT: Thank you. Well, your last point, your last

11 remark, given -- gives me reason to repeat that it certainly is my

12 intention that this case should be ready if the Trial Chamber here is

13 ready to start the case already during November this year. And of course

14 that brings a burden on both parties to work -- actually to work loyal in

15 order to make this workable at all. We all have not only an interest but

16 also an obligation to try to -- really, to hurry-up in this Tribunal. We

17 are under close observation, as everybody knows, and of course every trial

18 must be fair and prepared as it ought to be, but nevertheless it is

19 serious that we are not moving -- have been moving further than we have in

20 this case. I'm not blaming anybody. I know there have been, as already

21 mentioned, the shifts on the Prosecution side and of course that could

22 always create some difficulties, but anyhow I -- the reason why we are

23 moving the next 65 ter meeting forward is of course that we want to have a

24 close watch now on the preparation of this case.

25 I don't know if the remarks from the Defence side gives rise to

Page 150

1 any response from Prosecution. If so -- I take it, from what I heard

2 here, that what has been said now is covering all Defence lawyers, but let

3 me ask especially.

4 MR. GUY-SMITH: That is absolutely correct. It is, I believe,

5 covering all of us. Of course, Mr. Harvey will speak for his client. I

6 am concerned, have been concerned, and raise the same point that

7 Mr. Emmerson just raised with regard to the practical ability for the

8 Defence to be adequately and properly prepared, given the lateness of

9 disclosure and the new case that we will have to meet, which was not

10 contemplated at the time that the work-plan was first put forth. I

11 appreciate, for a number of reasons, not the least of which I have been

12 involved in another case here, the Tribunal's concern with the completion

13 strategy, but I also am concerned, as I'm sure all of us are, that the

14 completion strategy may well impact negatively on the right of the accused

15 to have a fair trial, which is something that I believe a former Judge,

16 Judge Hunt, at one point commented on and had some concerns about.

17 Now, I am very concerned that a November trial date may, in

18 effect, cause some serious inability for the Defence to be properly and

19 adequately prepared in this most serious of cases, and I want to make it

20 very clear that with regard to Mr. Balaj's Defence, we do not believe at

21 this time, based on the disclosure we have received, and the anticipated

22 disclosure that we will receive in the coming months that we will be in a

23 position to properly go to trial before 2007.

24 JUDGE BRYDENSHOLT: Well, I take note of that.

25 MR. HARVEY: Thank you, Your Honour. If I may just add to what

Page 151

1 Mr. Emmerson and Mr. Guy-Smith have said, with which of course I agree 100

2 per cent. I've just looked at my notes of the September 65 ter

3 conference, 65 ter bis conference, and the note I see noted there - and I

4 don't have the transcript in front of me - is the possibility of a

5 November trial date was at least discussed. We are now six months later,

6 almost to the day, from that conference and we are not one inch further

7 forward. And that places the Defence under, in our submission, an unfair

8 and impossible burden of preparation. We are still not ready to begin

9 that process of preparation for which the Prosecution has now had several

10 years. And that is the question that calls into question the whole

11 concept of equality of arms and fairness of the accused, with which I know

12 the Court and the Trial Chamber is especially concerned. The completion

13 strategy is of course important, and we, on our side, have no wish or

14 desire to delay that by -- by a day. But fairness to our client is

15 paramount in a case, particularly of this nature where there is so much

16 unsatisfactory information forthcoming from the OTP.

17 So we obviously will, with the far more limited resources

18 available to us on our side, pursue this case and our investigations as

19 diligently as we possibly can. But I just wanted to underscore that six

20 months after that September conference we are still labouring under a

21 disadvantage which the Tribunal should not have to be concerned about and

22 which of course places us in an impossible position. I cannot, very

23 honestly, I cannot see November as being viable or reasonable. And I just

24 have to put that on record today. Thank you.

25 JUDGE BRYDENSHOLT: Thank you, Mr. Harvey.

Page 152

1 But I'm sure you also are taking into account that your client is

2 placed in pre-trial detention, and that of course also is a reason why we

3 all must try to finalise this case as rapidly as possible. I'm sure

4 that's something you are fully aware of, but that's something which of

5 course I also am aware of that we have this obligation.

6 MR. HARVEY: I'm very grateful for Your Honour for drawing

7 attention to that reality. I am hopeful that that may be resolved by the

8 Appeals Chamber, and I'm hopeful that that resolution will come soon. But

9 I know that my client wants his Defence run thoroughly and properly, and

10 if it means that he has to sit an extra day in the Detention Unit, he will

11 sit for as long as it takes, but that's another matter to be discussed in

12 another place. But I thank you for the concern that you demonstrated in

13 that regard.


15 Now the Prosecution. Your response to the concerns you have just

16 heard.

17 MR. DUTERTRE: [Interpretation] Thank you, Your Honour. Several

18 comments or remarks which were detailed which have been voiced. In a

19 preliminary way I would like to say how surprised I am in the difference

20 of approach which I see today by part of the Defence counsel. We have had

21 three meetings during the last three working days at the request of the

22 Defence. We cooperated on both sides, and my impression is that today's

23 conference gives an impression of another approach. I'm rather surprised,

24 but I would say it is not essential, that several points have been

25 discussed, the question of disclosure, the question of documents and

Page 153

1 work-plan, which I will include in my answer about communication, the

2 question of redactions, amendments, and forensic elements.

3 On the question of disclosure, first of all, this is what I will

4 explain, I have heard about breaches, serious breaches, to the obligation

5 of disclosure. As far as I know, OTP has started disclosing even this

6 afternoon some exculpatory documents have been -- are being communicated,

7 post mortem exams, and in general I think that it's because of the cut-off

8 dates. I would like to know, really, if the OTP has violated its

9 obligation. It has respected the work-plan which was decided in September

10 of 2005. We have indeed held meetings to try and organise amicably things

11 between the two parties, and these meetings -- four meets, one in

12 December, three during the last three days, and several documents,

13 different documents, which are -- were in the making have been disclosed

14 or produced and they need to be finalised. I want to say that these

15 documents are working documents which are communicated amicable by

16 courtesy, and this is a global discussion which should lead to a global

17 agreement and it is with this intention that the Defence should produce a

18 document which for the OTP as an ongoing process and it -- the OTP is a

19 bit surprised about its consent on this matter. We intend to continue

20 discussions on the work-plan to try and proof it as fast as we can, and we

21 are close to an agreement and it should be manageable and should be

22 possible very soon that we can't consider that things presented separately

23 has had the agreement of the OTP. The agreement of the OTP will be given

24 on the whole a document when it's ready.

25 This being said, we intend of course to produce and respect our

Page 154

1 commitments, disclosure commitments, in a continuous way and to go

2 forward. Our position is that we are going to continue working on this,

3 but one shouldn't say this is finalised in any way and what -- has the

4 approval of the OTP in any way. We still have to consult, make a final

5 agreement on this document.

6 This leads me to speak also of the other document which was

7 mentioned, a memorandum. I specified that the OTP -- this is only an

8 annex to this document, the one you have now, and it is part of the whole.

9 I would like now to pass to the question of redactions, redactions of

10 documents, which is an important item. I have to recall that threats to

11 persons, physical integrity of people, of victims and witnesses in Kosovo

12 is a well-known problem. You have seen the report of Mr. Kajdar [phoen]

13 last fall. Secondly, the OTP continues to have fears or concerns for

14 certain victims and witnesses. Of course, thirdly in this context, the

15 OTP has been very careful. That has never intentionally breached the

16 order of the Chamber as far as protective measures are concerned for the

17 witnesses, in favour of the witnesses.

18 Therefore, when we have, I have to stress, very recently received

19 the requests from the Defence to review a certain number of passages of

20 the indictment, we answered in the following days. And this is what we

21 intend to do for other requests which are to be forthcoming. So this is,

22 again, evidence of our cooperation, cooperation on the side of the OTP,

23 and I think this is a matter which can be solved definitely later. If the

24 Defence is not satisfied, we can always use the remedies which are

25 available if they consider there are problems of security for the victims

Page 155

1 which would justify a certain number of redactions.

2 As far as the indictment is concerned, now, of course OTP will

3 give details and we shall, as you invited us to do so, produce at the next

4 Status Conference a draft which will contain all the necessary details for

5 everybody's information before we have a finalised document. This will be

6 disclosed and communicated at the date you yourself have indicated. And

7 the OTP will recapitulate a number of points with a certain number of

8 explanations.

9 As far as the last point is concerned, the forensic documents

10 which have been mentioned. It's a very long process, it is an ongoing

11 process, and the results are, of course, rather -- we take some time to

12 get the results, but I can already, as we discussed with the Defence, say

13 that we have disclosed, obviously, regularly, what we received and it is

14 not to say that it is only at the end of May cut-off date that all this

15 information will be communicated. In the meantime, the OTP is disclosing

16 information in order to have finalised this at the end of May. It won't

17 be at the last minute. It won't take place at the last minute.

18 I will conclude by saying that we shall respect this schedule for

19 September 2005 -- which was agreed in September 2005. We will continue to

20 have discussions with the Defence, and that perhaps the sort of alarming

21 remarks made may be perhaps a bit premature. And the OTP will do its best

22 to respect its timetable and its own obligations. Thank you.

23 JUDGE BRYDENSHOLT: Thank you, Mr. Dutertre. It's encouraging for

24 me to hear that you foresee this cooperation between the parties, and you

25 mention that disclosure is an ongoing process and you, as soon as it is

Page 156

1 possible, will make the process transparent for the other parties so that

2 this really can go on in the most speedy way to ensure that we can have

3 this trial starting -- starting as soon as the Trial Chamber will be

4 ready.

5 I suppose that the next 65 ter meeting we will have sufficient

6 time and we, I'm sure -- I'll make sure that we have that to go into all

7 details, also regarding what is really needed on Defence side, for

8 instance, regarding this bringing their own expert on forensic experts --

9 forensic examination. I'm aware the way things are done in the common-law

10 system; that's not what I'm used to. We have a more simple system, and

11 let us discuss the necessity of having all those examination made once

12 more. But I understand that that is what is prepared for and if it can be

13 done in a timely way, then of course it can be done, but let us discuss

14 it.

15 So I think that we now could close this meeting, but before I

16 do -- I do that, then let me ask if any of the parties have any other

17 issues they want to bring up here. Yes, Mr. Emmerson.

18 MR. EMMERSON: Your Honour, may I simply return to the status of

19 the timetable --


21 MR. EMMERSON: -- that is set out under the heading "agreed list of

22 undertakings on disclosure"?


24 MR. EMMERSON: Because although Mr. Dutertre did not indicate to

25 Your Honour any disagreement with the record there of dates given

Page 157

1 yesterday, nor can he disagree with the use of the word "undertakings"

2 because it is his word, not mine, he appeared to be suggesting in the

3 short submission to Your Honour just a moment ago that the Prosecution

4 does not regard themselves as being bound to keep to this schedule because

5 he would like it to have been appended as an annex to a different

6 document. Well, leaving the drafting history aside for a moment, it does,

7 with respect, seem to me that one needs to emerge from today's hearing

8 with clarity that this timetable must be met. And if that requires an

9 order, then I'll reluctantly apply for one, but it may be that simply a

10 clear indication from Your Honour that there being no substantive

11 objections to that timetable, it having been the Prosecution's own agreed

12 timetable, we can proceed on the basis that the Prosecution must meet that

13 timetable and will be expected to explain themselves at the Status

14 Conference if they fail to do so.

15 JUDGE BRYDENSHOLT: Yes, Mr. Emmerson. That is my understanding

16 as well. I wouldn't like to see it necessary to make any -- any order

17 from the Trial Bench, from my side. I think I will take the word of

18 Mr. Dutertre regarding the cooperation which is foreseen between the

19 parties and that it is understood on both sides that the preparation is an

20 ongoing process and that of course what needs to be disclosed also should

21 be disclosed on an ongoing basis and not only on a final date. So I look

22 upon this list of dates as have been given to me today as a working paper

23 on which I will rely and I -- I suppose that also not only the Defence but

24 also the Prosecution will rely since I understand that that is something

25 which is the outcome of negotiations in good a faith between the parties.

Page 158

1 So let us leave the history of the preparation up till now aside,

2 and let us go forward in the expectation that this is the working paper

3 which both parties will work on and which we will return to on the next 65

4 ter meeting, where we will go in detail with all the issues. So I will

5 ask if the accused have any other matter relating to their stay in

6 custody, their health, or condition in detention to raise -- oh, yes,

7 Mr. Dutertre. Yes, please.

8 MR. DUTERTRE: [Interpretation] I wouldn't like to continue the

9 discussion on this point. Of course there will be cooperation between the

10 parties, but since the document which was extracted from another document

11 has been given, I want to give you the only global document which has to

12 be finalised. I don't want to continue on this point. I just wanted to

13 let you know. Here is the document in question.

14 MR. GUY-SMITH: Your Honour, this document has not been agreed.

15 When I left -- when I left the meeting, it was my understanding that we

16 had a timetable document and nothing more than that we were dealing with

17 for today's proceedings.

18 JUDGE BRYDENSHOLT: Nevertheless -- nevertheless, I'm -- I have

19 received this document and I don't know it now, but as I understand -- I

20 have understood that this is not in any way an agreed document. It is

21 part of -- on the Prosecution's side, they think I should have that for

22 information as well when I have got this timetable as a working paper. So

23 I -- well, have you any further remarks on that?

24 MR. GUY-SMITH: I have no further remarks on the document at this

25 juncture; however, in the event there are further difficulties with the

Page 159

1 memorandum that has just been submitted to you by the Prosecution, which

2 at this time is a creature of the Prosecution, there may need to be some

3 discussion about the entire drafting history, which will raise a series of

4 unpleasantries which hopefully we could all avoid.

5 MR. EMMERSON: Hopefully. I hope so. I do apologise for at this

6 point of the hearing going -- appearing to descend into some sort of

7 unseemly spat but I must just explain the position. This document that

8 you now have was prepared by the Defence on the 1st of December as a

9 result of the meeting - and all of the meetings have been at the request

10 of the Defence, not the Prosecution - to press Mr. Waespi, who was the

11 previous Prosecutor, for disclosure. It was served on the Prosecution on

12 the 2nd with insertion for deadlines. It took the Prosecution two and a

13 half months to insert those dates. And when the document was returned to

14 us finally yesterday, it included a number of amendments, one you will see

15 at paragraph 32 which sets out to rob the agreement of any binding force,

16 because it specifically sets out the Prosecution's request that the

17 content of the memorandum is not binding in any way. That's the reason

18 why I have been asking that we have some clarity on the agreed timetable.

19 This was not a schedule to the memorandum. I drafted both documents. This

20 was a document that was prepared as a military -- yesterday's agreement.

21 It is important that all parties know that we are proceeding on that

22 timetable.

23 JUDGE BRYDENSHOLT: We are certainly. That's at least what I am.

24 And I thank you, Mr. Emmerson.

25 Now, do any of the accused have any remarks regarding their

Page 160

1 conditions in the Detention Unit?

2 MR. GUY-SMITH: I do not from Mr. Balaj --

3 THE INTERPRETER: We didn't hear anything.

4 MR. HARVEY: Your Honour, as far as Mr. Brahimaj is concerned, I

5 have been in discussion with the Senior Legal Officer and have provided

6 him with a written communication concerning my client's medical condition,

7 which still unfortunately continues to give rise to concern. And I am

8 grateful for his good auspices in offering to intercede and see that my

9 client receives the client that he has long been denied.

10 JUDGE BRYDENSHOLT: Yes, I have been informed about this matter.

11 MR. HARVEY: As I understand.

12 JUDGE BRYDENSHOLT: And I know your letter has been sent to the

13 deputy registrar. And I expect that we will get a written response so

14 that we can inform you at least when we meet again.

15 MR. HARVEY: At least --

16 JUDGE BRYDENSHOLT: At least at that time.

17 MR. HARVEY: I would hope, if possible, before that time.

18 May I raise just one scheduling issue with the Court. Since you

19 have indicated, Your Honour, that you intend to attend the 65 ter meeting,

20 is it also your intention to schedule a 65 bis Conference to follow that

21 meeting? I'm just thinking in terms, we've got Thursday, the 30th of

22 March is now set aside. Should we, in our calendars, also be expecting to

23 be here on Friday, the 31st? I just -- it would help to plan my future a

24 little bit.

25 JUDGE BRYDENSHOLT: I don't think, but I haven't decided on that.

Page 161

1 That is something we could discuss probably on the 65 ter meeting. But if

2 we -- it all depends, I would say, but I don't expect that there will be a

3 following Status Conference.

4 MR. HARVEY: Thank you for that indication.

5 JUDGE BRYDENSHOLT: Well, then we'll finalise for today, and we'll

6 see each other again. The case is postponed.

7 --- Whereupon the Status Conference adjourned at

8 11.26 a.m.