Tribunal Criminal Tribunal for the Former Yugoslavia

Page 168

1 Friday, 13 October 2006

2 [Status Conference]

3 [The accused entered court]

4 [The accused Haradinaj not present]

5 --- Upon commencing at 10.01 a.m.

6 JUDGE KWON: Ladies and gentlemen, good morning. Please call the

7 case.

8 THE REGISTRAR: Good morning, Your Honour. This is case number

9 IT-04-84-PT, the Prosecutor versus Ramush Haradinaj, Idriz Balaj,

10 Lahi Brahimaj.

11 JUDGE KWON: Thank you.

12 Can I have the appearances. Prosecution, please.

13 MS. SELLERS: Good morning, Your Honour. Good morning to my

14 learned friends. I'm Patricia Sellers from the office of the Prosecution.

15 And with me today are my co-counsel Mr. Gilles Dutertre, Mr. Gramsci

16 Di Fazio, Mr. Anees Ahmed, and Ms. Nicole Rizer.

17 JUDGE KWON: Thank you, Ms. Sellers.

18 For the Defence, please.

19 MR. EMMERSON: Good morning, Your Honour. My name is Ben

20 Emmerson, and I am counsel for Mr. Haradinaj, and I appear together with

21 my co-counsel Mr. Rodney Dixon, assisted by Marina Aksenova.

22 JUDGE KWON: Thank you, Mr. Emmerson.

23 MR. GUY-SMITH: Good morning. Gregor Guy-Smith appearing on

24 behalf of Ibriz Balaj and assisted by Bart Willemsen.

25 JUDGE KWON: Thank you, Mr. Guy-Smith

Page 169

1 MR. HARVEY: Good morning, Your Honour. Richard Harvey appearing

2 on behalf of Lahi Brahimaj. Together with me are Mr. Paul Troop, my

3 co-counsel, and assisted by Antonietta Trapani, who is our case manager.

4 JUDGE KWON: Thank you, Mr. Harvey.

5 Before going on further, I'd like to make sure that the accused

6 are following in a language they understand. However, I take it that

7 Mr. Haradinaj is not present, being on provisional release.

8 MR. EMMERSON: Your Honour, that's correct.

9 JUDGE KWON: Mr. Balaj.

10 THE ACCUSED BALAJ: [Interpretation] Yes.

11 JUDGE KWON: Are you following this procedure in the language you

12 understand?

13 THE ACCUSED BALAJ: [Interpretation] Yes, yes.

14 JUDGE KWON: How about Mr. Brahimaj?

15 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, Your Honour.

16 JUDGE KWON: Thank you. My understanding is that this is the

17 fifth Status Conference but, however, it is my first Status Conference

18 after the change in the composition of the Chamber in last July.

19 Due to the unavailability of the -- certain Defence counsel for a

20 so-called 65 ter Conference, my understanding is the Senior Legal Officer

21 requested the parties to put in writing the items they wished to discuss

22 at this Status Conference, and I was able to briefly go through that item,

23 and I have to say that I'm very much benefited from the submissions.

24 I have one suggestion that I would like -- if the parties do not

25 object, I would like the Defence submission, three of them, to be filed

Page 170

1 officially so that we don't have to go through each item in detail,

2 without having to go through -- into items in detail. We can refer to

3 them in the courtroom.

4 Would it be okay with the Defence?

5 MR. EMMERSON: Certainly. That would be a perfectly convenient

6 way to proceed.

7 JUDGE KWON: Thank you. Having said that, then I will follow the

8 items noted by Mr. Emmerson in Haradinaj's Defence submission basically.

9 So therefore I would like to deal with the pending motions first of all,

10 but I take it that parties should have received the two decisions I've

11 issued yesterday. Can I confirm that?

12 I see nodding all from the parties.

13 MR. GUY-SMITH: That's correct.

14 MS. SELLERS: Your Honour, the Prosecution has received the

15 protective motion decision. We have not received the other decision at

16 this time.

17 JUDGE KWON: Both decisions are related to protective measures,

18 but other thing I take it that it is a decision on the protective measures

19 for certain forensic documents.

20 MS. SELLERS: Your Honour, we thank you that that decision has

21 come out. No, we have not received it. I have been informed by our case

22 manager that she has just -- has received an electronic copy. So we're

23 unaware at this point in time of its contents, but we appreciate the

24 decisions having been issued.

25 MR. EMMERSON: Your Honour, I should make clear that the Defence

Page 171

1 is in the same position. The nods that Your Honour observed were nods of

2 confirmation that we, too, had yesterday received the decision in relation

3 to Witness 756, but the other decision has not or certainly hadn't found

4 its way to us at the time of final preparation for this morning's hearing.

5 JUDGE KWON: Thank you. Yes. This is a confidential decision, so

6 I'd better not deal with it in open session.

7 Yes. Then I will come to the outstanding motions, which are of --

8 there are four items in number. The first and the most important thing is

9 the amendment of indictment, and -- which is outstanding for some time,

10 and the Chamber is of the view it is urgent to deal with this matter, and

11 we're going to give some priority to this motion. And I think I can say

12 without -- well, speaking for myself, the Chamber would be able to dispose

13 of the decision by -- before the end of this month.

14 Ms. Sellers.

15 MS. SELLERS: Your Honour, thank you again for recognising me.

16 Since Your Honour has already approached the issue of amendment of

17 indictment, in particular with the outstanding motion, the Prosecution

18 would like to just intercede and we can take our time later on in the

19 hearing if you so deem, but to say that we would be informing the Trial

20 Chamber at this time point in the session that we will be coming forward

21 with another motion to amend. This is in view of --

22 JUDGE KWON: Excuse me. You are saying that you would propose to

23 amend the indictment once again?

24 MS. SELLERS: Your Honour, yes. We were going to address this to

25 Your Honour a bit later on in the session. I'm only bringing it up now

Page 172

1 because that might in some ways modify the need to have to put out a

2 decision concerning the amendments that we proposed before.

3 JUDGE KWON: Is it related to the item in your 65 ter letter named

4 as alteration of the Lake Radonjic crime scene.

5 MS. SELLERS: No, Your Honour, it is --

6 JUDGE KWON: It isn't.

7 MS. SELLERS: It is not related to that. It's related to the last

8 item that we put on the agenda today. The Prosecution informed both the

9 Defence and the Trial Chamber that we would be seeking further amendment

10 to the indictment.

11 JUDGE KWON: Could you tell me briefly the skeleton of the

12 proposed amendment, briefly?

13 MS. SELLERS: Yes, Your Honour I can.


15 MS. SELLERS: We propose, within the contents of the Trial Chamber

16 or the former Pre-Trial Judge having already raised the issue of

17 Rule 73 bis, to streamline the indictment. In this manner, we would like

18 to, as a matter of fact, remove some of the currently alleged criminal

19 conduct, and we intend to drop some of the counts, and we would like to

20 put the indictment in a format which would be easier both for the

21 Prosecution to proceed with its case, but we also think it would make it

22 clearer in terms of due process rights of the accused and of the Trial

23 Chamber that would be presiding over the case.

24 JUDGE KWON: Thank you. Thank you, Ms. Sellers. Without having

25 to hear from the Defence, that gesture or that step of the Prosecution

Page 173

1 should be welcome very much, and I wonder if there should be any addition

2 of charges.

3 MS. SELLERS: Your Honour, at this point in time the additional

4 charges would only relate to those that are currently before the trial

5 bench in terms of the amendment, or the move to amend the indictment that

6 have been held earlier, in May. Other than that, Your Honour, we do not

7 seek additional charges. We'd like to incorporate that amendment now

8 within our next amendment.

9 JUDGE KWON: So your suggestion would not affect at all the

10 disposition of current motion which is pending before the Chamber.

11 MS. SELLERS: Your Honour, it would affect it only to extent, if

12 you would prefer, to hold in abeyance your decision on the current

13 amendment, and we will incorporate that evidence that is before you for

14 the current amendment in this new motion to seek leave to amend the

15 indictment.

16 JUDGE KWON: So in order to have a complete -- complete

17 indictment.

18 MS. SELLERS: Yes, Your Honour.

19 JUDGE KWON: Sort of.

20 MS. SELLERS: Yes, Your Honour.

21 JUDGE KWON: Having heard that, we can dispose of the current

22 motion, ordering the Prosecution to produce a new -- I'm not sure whether

23 it should be granted or not. We can order the Prosecution to produce a

24 final indictment in a very not lengthy time. Can I say so?

25 MS. SELLERS: Your Honour, yes. I think that you can say that.

Page 174

1 And I think that we would also proprio motu from the Prosecution would

2 like to file an amended indictment within a short delay of time, and we

3 envision that that filing should be certainly within two weeks and we

4 really anticipate for it to be sooner.

5 JUDGE KWON: But without having to wait for our decision on the

6 amendment of the indictment, could you not file that amendment as --

7 another amendment as soon as possible, say, next week?

8 MS. SELLERS: Your Honour, I think we would attempt to file it

9 toward the end of next week, but because of certain issues that are still

10 currently being discussed, it might be at the beginning of the following

11 week.

12 JUDGE KWON: Yes. That's still before the end of this month.

13 Then --

14 MS. SELLERS: Certainly, Your Honour.

15 JUDGE KWON: Then Trial Chamber will be in the position to deal

16 with it comprehensively.

17 MS. SELLERS: Yes, Your Honour. That would be our intention.

18 JUDGE KWON: I don't think there would be any opposition in

19 relation to that from the Defence.

20 Any observation? Mr. Emmerson.

21 MR. EMMERSON: My only observations are these: We had notice of

22 this just a few moments before coming to this morning's hearing and

23 obviously have only those details which Ms. Sellers has sketched out to

24 Your Honour this morning. Plainly we welcome the abandonment of criminal

25 charges. We welcome the reduction in the scope of criminal allegations on

Page 175

1 the indictment.

2 Insofar as the Prosecution propose to persist, however, with the

3 application to amend by an addition of a count on the indictment, which is

4 reflected in the existing motion that's presently pending before the Trial

5 Chamber, we wonder whether in fact given the length of time that that

6 motion has been outstanding the more appropriate course would not be for

7 the Trial Chamber to proceed to rule on that motion given that it is, as

8 Your Honour has observed, entirely independent of the Prosecution's

9 proposed reduction in the scope of the charges that currently sit on the

10 indictment. Plainly, at the end a compendious indictment will need to be

11 filed, but there is a substantive decision to be made on the addition of

12 the count, which is already the subject of a closed exchange of pleadings.

13 The concern, obviously, that we have is that there has been

14 already some considerable delay in that respect for reasons that of course

15 all parties well understand, but we are anxious that further delay which

16 could be avoided is avoided, and in those circumstances we would certainly

17 invite you to consider whether the appropriate course is not to rule on

18 the existing motion, and as Your Honour has suggested, for the Prosecution

19 to file the motion insofar as it relates to the reduction in the scope of

20 the existing criminal allegations, and that can be dealt with either at

21 the same time or very shortly afterwards.

22 And insofar as the skeleton that Ms. Sellers has provided is

23 concerned, we understand what she has said to be an indication that there

24 will be no expansion of the Prosecution's allegations in relation to the

25 modes of criminal participation.

Page 176

1 JUDGE KWON: Thank you. We'll bear that in mind. And I encourage

2 the Prosecution to file another amendment as soon as possible.

3 Yes, Ms. Sellers.

4 MS. SELLERS: Thank you, Your Honour. I would just like to

5 clarify one thing and it might be just the terminology of my learned

6 friend. We will not be expanding in terms of the numbers of counts; we

7 will be substituting some counts for others. But I believe that my

8 learned friend just mentioned the modes of responsibility, and I did not

9 say that we would not be expanding the modes of liability. I talked about

10 the criminal conduct and the counts. Just to make sure that that was

11 clear on the record.

12 I thank you.

13 JUDGE KWON: I beg your pardon, Ms. Sellers. You said

14 substituting count?

15 MS. SELLERS: Meaning substituting something that we find that

16 might be legally characterised under a provision.

17 JUDGE KWON: Not new facts.

18 MS. SELLERS: Not new facts, Your Honour. And that's what I'd

19 like to emphasise. We're not talking about additional facts or conduct

20 other than what is before Your Honour right now. We're talking about a

21 refinement of the indictment in terms of legal characterisation.

22 JUDGE KWON: Okay. We will see what will come out.

23 Mr. Guy-Smith.

24 MR. GUY-SMITH: With regard to the comments just made by

25 Ms. Sellers, it seems that the suggestion made by Mr. Emmerson then may

Page 177

1 well be -- I would adopt that suggestion, that the Chamber at this point

2 make a determination on the pending motion.

3 If I'm not mistaken, what I believe I just heard is we are

4 potentially looking at different modes of liability being pled in the new

5 application. If that be the case, then why don't we say that now so we

6 understand that, because I think it would be of assistance to the Chamber

7 in making a determination of what would procedurally be the better way of

8 proceeding at this time.

9 JUDGE KWON: So could you elaborate a bit more on the -- [Albanian

10 on English channel].

11 I think the English channel has been interrupted. It seems to be

12 okay now.

13 Could you elaborate on the substituting mode of liability a bit

14 further.

15 MS. SELLERS: Certainly, Your Honour. And for sake of clarity as

16 a matter of fact, I believe that learned counsel does understand.

17 The Prosecution will allege, and allege based upon the same

18 conduct other modes of liability. And that's why I wanted to no mislead

19 our learned friend who made the comment relating to modes of liability.

20 I spoke about substitution of charges, and that is unrelated to

21 what I've just informed the Trial Chamber and Defence of modes of

22 liability. That is related to the legal characterisation of certain

23 counts.

24 In reviewing our evidence, we believe that certain counts might be

25 characterised better under another legal provision. It will not increase

Page 178

1 the number of counts. It will refine the indictment so that the accused

2 understand and have a clearer ability to defend themselves against the

3 criminal conduct that the Prosecution has already placed within its

4 indictment.

5 JUDGE KWON: I don't think I understand in full.

6 MS. SELLERS: Might I give you an example, Your Honour.

7 JUDGE KWON: Yes. It's substituting 7(1) to 7(3)?

8 MS. SELLERS: No, Your Honour. I'm speaking about, on the one

9 hand, and very clearly to say that these are oral submissions and that we

10 were going to detail them in written submissions, but just for sake of

11 clarification.

12 For example, substituting counts that at this point in time might

13 allege cruel treatment if we find that that evidence is sufficient not

14 only for cruel treatment but for a count of torture, we will then

15 substitute, no longer proceed on a count of cruel treatment and might

16 choose to proceed on a count of torture. If we find that the conduct of

17 the accused lends itself not only to joint criminal enterprise but to

18 another form of individual criminal responsibility, we might in the

19 alternative plead that form. Not increasing the number of counts but

20 correctly, more correctly, characterising the conduct of the accused and

21 the liability that the accused is thus exposed to and the liability that

22 they must defend themselves with.

23 Your Honour, if I haven't made myself clear, please, I'm open for

24 your suggestions on how to refine the submission.

25 JUDGE KWON: At this time, I don't think it's beneficial for both

Page 179

1 parties and for the Chamber as well to go further without having looked at

2 the actual proposal for the amendment or the substituting charges. So

3 after the motion will have been filed, the Chamber will consider what step

4 of action will be most appropriate and decide whether to decide the

5 current pending motion alone or two motions altogether.

6 Any suggestions from the Defence?

7 MR. EMMERSON: I had, if I may, two short observations.

8 I see the force in the suggestion that the Prosecution's draft

9 amended indictment should be filed before the Trial Chamber rules on the

10 pending motion so that the two can be side by side before the Trial

11 Chamber, although I don't at the moment see it as being necessary for the

12 existing motion to be either dismissed or withdrawn.

13 JUDGE KWON: That is understood. Thank you.

14 MR. EMMERSON: But given that the current motion was hoped at

15 least to have been decided by the end of this month, then we would request

16 that the Prosecution be given a very clear direction that the timetable

17 that they are proposing for the filing of the amended indictment by the

18 end of next week be strictly adhered to so that the Trial Chamber is in a

19 position to render its decision on the existing motion which, as Your

20 Honour's recognised, is one requiring expediency without any further

21 delay.

22 The other observation --

23 JUDGE KWON: Sorry to interrupt you, but the Prosecution did not

24 say the end of next week but sometime week after. So given the 24th,

25 Tuesday, is a holiday, UN holiday, I would like to suggest the Prosecution

Page 180

1 would file its proposed motion by 25th, Wednesday.

2 MS. SELLERS: Your Honour, yes. The Prosecution will following

3 that --

4 JUDGE KWON: Yes. Let's move on.

5 MR. EMMERSON: And Your Honour, the second point. May I thank

6 Ms. Sellers for the clarification and to record again arising out of the

7 exchange that has occurred that it is our understanding then that an

8 allegation under 7(3) is not proposed as part of the new amendments.

9 JUDGE KWON: Yes. And related to that amendment of indictment is

10 the deadline to file pre-trial briefs from the Prosecution and the Defence

11 as well, so at this moment I'd like to suggest that the deadline currently

12 set is not valid, which is obvious, and when the Chamber will issue the

13 decision on the amendment of indictment I shall, or the Chamber will, at

14 the same time will give the guideline or set the deadline to file the

15 pre-trial briefs respectively.

16 The previous -- previous deadline for the Defence was set two

17 weeks after the Prosecution's filing of pre-trial briefs, but my

18 impression from the top of my head is rather some are short, so I have in

19 mind about a month from the Prosecution's filing. Would it be okay with

20 the Defence?

21 MR. EMMERSON: Your Honour, particularly in light of the

22 suggestion that the indictment may look different in shape to the

23 indictment that is currently before the parties, a period of four weeks

24 would be certainly valuable from the point of the view of the Defence of

25 Mr. Haradinaj.

Page 181

1 JUDGE KWON: Thank you, Mr. Emmerson.

2 I take it that Mr. Guy-Smith and Mr. Harvey take also the same

3 position.

4 MR. GUY-SMITH: I concur. Yes, I do.

5 MR. HARVEY: So do I.

6 JUDGE KWON: Thank you. Next, motion, second one, which Chamber

7 find also urgent and important is a protective -- is motion concerning the

8 lifting redactions of witness statement filed by the Defence. The Chamber

9 will also give priority to this motion in dealing with several pre-trial

10 cases pending before the Trial Chamber. However, I wonder whether parties

11 can reach a kind of compromise.

12 Can we briefly go into a private session, briefly.

13 [Private session]

14 (redacted)

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16 (redacted)

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19 (redacted)

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24 (redacted)

25 (redacted)

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11 Pages 182-184 redacted. Private session.















Page 185

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5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

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14 (redacted)

15 (redacted)

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18 (redacted)

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20 (redacted)

21 (redacted)

22 [Open session]

23 THE REGISTRAR: We're in open session, Your Honour.

24 JUDGE KWON: Mr. Dutertre, as soon as practicable, could you file

25 in writing whether Prosecution is opposed to the disclosure of those

Page 186

1 materials we referred to to the named Defence counsels' legal assistants.

2 Or are you in a position to answer the question right now?

3 MR. DUTERTRE: [Interpretation] Your Honour, we do not oppose any

4 such thing. We do not oppose that assistants have access to these

5 documents.

6 JUDGE KWON: That's very helpful.

7 Mr. Harvey.

8 MR. HARVEY: Your Honour, I don't seek to complicate this matter

9 further, but as has already been mentioned, up until recently

10 Mr. Guy-Smith and I both shared the services of Mr. Willemsen as our case

11 manager. He is now working exclusively for the Balaj team, and

12 Ms. Trapani is now my case manager and legal assistant for these purposes,

13 and so I would ask that she also be granted the same access as given to

14 Ms. Parker and Mr. Willemsen.

15 JUDGE KWON: Can I have the name again?

16 MR. HARVEY: Antonietta Trapani.

17 JUDGE KWON: I have it. Yes, Ms. Trapani.

18 Do you have any observation, Mr. Dutertre?

19 MR. DUTERTRE: [Interpretation] None.

20 JUDGE KWON: Thank you. Then let's go back to my original

21 question, whether we can reach a similar compromise in relation to the

22 motion by the Defence lifting the redaction of the witness statements.

23 So how about disclosing unredacted, full statements to the Defence

24 counsel but not the accused?

25 MS. SELLERS: Your Honour, I --

Page 187

1 JUDGE KWON: Without -- I'm just --

2 MS. SELLERS: Yes, Your Honour I would just like to --

3 JUDGE KWON: I'm just asking, yes.

4 MS. SELLERS: Certainly. And we certainly want to promote a

5 spirit of cooperation. The Prosecution must, however, place on the record

6 and inform Your Honour that our concern relates to witness protection and

7 witness security issues, and that if Your Honour were to suggest that at

8 this point that the redactions and the identity and identifying

9 whereabouts be lifted, we're obliged to speak to our witnesses and inform

10 them of this. And, Your Honour, at that point I believe that the danger

11 that they might be exposed to could increase, and their fear and

12 anticipation prior to that 30-day time period would be affected.

13 But in a spirit of cooperation, I think that what we can do is

14 inform the Defence and Your Honours that we will look again as we are

15 refining our witness list to see if there are any persons who are now no

16 longer affected by the Defence request.

17 JUDGE KWON: Thank you. I have asked this question, because at

18 any rate, Prosecution is due to disclose those material 30 days before the

19 commencement of trial, which is roughly saying early next year, say

20 February or March, and then -- a month before that is January. So it's

21 not far from here -- from now. So there's no big deal disclosing only to

22 the Defence counsel and specific legal assistants at this moment.

23 MS. SELLERS: Your Honour, I appreciate your observations, and I

24 think based upon our response to the Defence motion we understand that the

25 Defence would not be able to disclose only to Defence counsel. They

Page 188

1 would, of course, during the course of investigations expose the names,

2 identifying whereabouts to investigators, possibly to their own witnesses

3 in inquiries about certain persons, and other third parties, and I believe

4 that's the rationale behind the 30-day disclosure.

5 I know that we are approaching that deadline, and we believe, and

6 I think the Trial Chamber prior to this, and other Trial Chambers within

7 the Tribunal, have seen the 30-day period to be a adequate period of time

8 for the witnesses who will be called at trial.

9 The Prosecution would just like to renew its stance on the open

10 record and to say again that we would like to cooperate possibly by

11 refining the people that are affected by this Defence motion.

12 JUDGE KWON: So I take it that you are opposing to that idea,

13 but -- so that being the case, the Chamber will deal with the motion as

14 promptly as possible.

15 Any observation, Mr. Emmerson?

16 MR. EMMERSON: Your Honour, may I make three short observations.


18 MR. EMMERSON: First of all, on behalf of Mr. Haradinaj, we have

19 always adopted a strategy in our dealings with the Prosecution and with

20 the Trial Chamber in relation to protective measures, whereby we would not

21 make applications for the lifting of protective measures unless or until a

22 point had been reached in our investigations when we needed to have

23 redactions lifted in order effectively to prepare for trial. And so that,

24 for example, at the outset of these proceedings we did not oppose

25 protective measures because we felt the appropriate course was to apply to

Page 189

1 have them limited on a case-by-case basis once it became clear that the

2 redactions were obstructing effective Defence preparation. And on

3 reviewing the file, Your Honour will see that we made our first group of

4 applications in relation to a series of witnesses, all of whom gave

5 evidence about or in relation to allegations concerning the Jablanica

6 area.

7 All of the arguments that Ms. Sellers has raised today and have --

8 the Prosecution have raised in their written motion were made in relation

9 to those series of witnesses, and the former Trial Chamber's view, rather

10 like the observation that you have just expressed, was that with each of

11 these witnesses it is not a question of whether this information is going

12 to be disclosed but when, and the when being an issue which is relevant to

13 the most effective Defence preparation. And as I've indicated, we

14 proceeded on a case-by-case basis, and we have reached a point at which

15 that material is necessary for the purposes of completing our

16 investigations prior to trial.

17 There's quite a lot of redacted material in there, and 30 days

18 prior to trial places an unnecessary constraint, given that inevitably

19 that material will in due course and in a relatively short period be

20 disclosed to the Defence in any event. Which leads me on to the second

21 point.

22 There is a difference between forensics disclosure and the

23 redactions which are sought to be lifted by this motion. Forensics

24 disclosure where redacted material was in issue went to Defence counsel

25 and to the experts because it was only relevant to expert analysis. None

Page 190

1 of the information that was redacted was information which had the

2 substantive relevance to the investigation of counts. It was, for

3 example, identifying material for the donors of DNA samples who are not

4 witnesses necessarily in the case but had simply donated their DNA for the

5 purposes of comparison.

6 Ms. Sellers is quite right to anticipate the Defence's response to

7 Your Honour's this suggestion. The purpose of having these redactions

8 lifted, as our motions make clear, is a measured and as we submit a

9 proportionate way to advance the Defence investigation. So whilst of

10 course identifications could remain confidential for the purposes of the

11 general public or third parties, we most certainly want to be able to

12 disclose the identifications that are lifted to our investigators.

13 And finally, we again welcome the indication from Ms. Sellers that

14 the Prosecution will review the necessity for the maintenance of

15 protective measures in respect of those witnesses themselves. That is a

16 duty of review that we would imagine was an ongoing one and that the

17 Prosecution would in any event be conducting on a continuous basis, even

18 after protective measures have been authorised where they think they have

19 no longer got good grounds to maintain them, but it's not as we would

20 submit a reason in any way to delay the ruling that the motions now

21 require.

22 JUDGE KWON: Thank you. We'll bear that in mind in dealing with

23 the motion. While I encourage very much the voluntary cooperation between

24 the parties, but the Chamber -- as for Chambers as well, we'll do our best

25 to determine the issue as soon as possible.

Page 191

1 Third one -- the third outstanding motion is a -- one related to

2 the protective measures for Witness SST7/38. But in the meantime, can I

3 ask what the abbreviation of SST7 means at all? It's a very odd form of

4 pseudonym.

5 MR. DUTERTRE: [Interpretation] Your Honour, SST7 that you find

6 before the number of the witness relates, I believe, but I might stand

7 corrected, I think it's related to team 7. That's the number of the team

8 that is in charge of the case, the name of the investigator's team. Then

9 you have and slash, and then the number of the witness 38, 29, whatever.

10 That's the number of the protected witness. So we will move from SST7/1

11 to SST7/X, depending on the number given to each particular witness.

12 That's the explanation I can give you on that.

13 And as far as this particular witness is concerned, we are talking

14 about someone who's --

15 JUDGE KWON: I know who this witness is about. This is related to

16 the added part of the amended indictment proposal. Yes. And the -- my

17 understanding is that the -- this decision is delayed or postponed until

18 the determination of the -- whether -- as to whether to grant the

19 amendment or not.

20 However, it was my practice as a Pre-Trial Judge, or the practice

21 of the Trial Chamber I formerly belonged to, was somewhat different, i.e.,

22 we allowed those materials to be disclosed to the Defence, i.e. -- to put

23 it otherwise, the supporting material upon which the proposed amendment of

24 the indictment or new charges were based upon should be disclosed. It is

25 because the Chamber should hear from the Defence, and the Chamber would be

Page 192

1 benefitted from the Defence submission, although once the indictment is

2 confirmed or leave has been granted, it is not for the Defence to

3 challenge the -- such confirmation or amendment on the ground that there's

4 no prima facie case.

5 So I'm minded, inclined, if the Defence so wishes and there is no

6 serious objection from the Prosecution, to order the Prosecutor to

7 disclose those statements with any redaction the Prosecution deems

8 necessary on a provisional or temporary basis until the Chamber's final

9 decision after the determination of the indictment issue.

10 Ms. Sellers.

11 MS. SELLERS: Your Honour, the Prosecution would not oppose that

12 suggestion as long as it is understood that any redactions, removing of

13 identity is done for the ease of the Defence to be able to look at the

14 documents, and it's not in any manner the Prosecution trying to obviate a

15 Trial Chamber order while the issue is still before you.

16 JUDGE KWON: And I take it there would be no objection from the

17 Defence.

18 MR. EMMERSON: On the contrary. It was the position that we

19 advocated prior to the decision of your predecessor, namely that we ought

20 to see the material so that we could make submissions, and at that stage

21 the position of the Prosecution was in opposition and we're grateful that

22 that position has changed.

23 JUDGE KWON: So it is so ordered. That as soon as practicable the

24 Prosecution will disclose those statements to the Defence with the

25 redactions.

Page 193

1 MS. SELLERS: Thank you, Your Honour. I wanted to make that

2 clear --

3 JUDGE KWON: On a provisional basis.

4 MS. SELLERS: Yes. That is the distinguishing points between our

5 prior argument and what learned counsel is submitting now. Thank you.

6 MR. EMMERSON: Your Honour, if the object of that strategy is that

7 the Defence might have an opportunity to make any comments that would

8 assist the Trial Chamber in determining the application to amend and given

9 the timetable which is currently proposed for the application itself, may

10 we therefore invite you to direct the Prosecution to disclose that

11 document to us forthwith, that is to say, within the next 48 hours at the

12 outside, and then we may have an opportunity to file any submissions

13 arising out of it in sufficient time for them to be with the Trial

14 Chamber.

15 JUDGE KWON: Forty-eight hours from now is sometime on Sunday.

16 MR. EMMERSON: Well, two working days.

17 JUDGE KWON: Will it suit the Prosecution?

18 MS. SELLERS: Your Honour, I think we will do it forthwith. I

19 must be quite frank. I did not believe my learned friend will have it on

20 Sunday afternoon, but certainly we will move on that.

21 And I think that with the understanding, too, that we certainly

22 don't mind giving courtesy copies in order to have it disclosed as soon as

23 possible, but we would like to make sure that it stays within the

24 parameters that --


Page 194

1 MS. SELLERS: -- Your Honour has set forth.

2 JUDGE KWON: I would like to believe in voluntary -- the spirit of

3 cooperation of the Prosecution, and if the Defence does not receive that

4 statement until sometime Tuesday or Wednesday, the Defence can come up

5 with a motion to the Pre-Trial Judge.

6 The last outstanding motion, as I understand it, is the -- which

7 was filed yesterday, and I -- which I saw just part of it without annexes

8 is related to the access of a note of a witness.

9 Mr. Dutertre, propose to going into private session?

10 MR. DUTERTRE: [Interpretation] Just to come back to our previous

11 point. I believe that if we look at the situation and the nature of the

12 witness we've just discussed, if the Defence was to make its submission on

13 a confidential basis, that would be very appropriate. And if the

14 amendment of the indictment is not granted, then thus we would avoid

15 making public all sorts of information related to a witness would not

16 testify.

17 That I wanted to add and I believe that the Defence will not

18 object to this.

19 JUDGE KWON: I take it for granted to the Defence should have

20 understood it. Yes.

21 Witness 29. Having read the submission from the Defence, and I

22 have no knowledge in detail about that, but are you in the position to

23 respond to that motion right now or --

24 MS. SELLERS: Your Honour, we were alerted to the motion when the

25 Defence counsel put forward their issues for today's Status Conference,

Page 195

1 and then we received the motion yesterday, early evening. We have had a

2 chance to read the motion. We would like to preserve our right to respond

3 within the 14 days. And we had put it on our list also just to say that

4 we would be able to inform the Trial Chamber, not what position we would

5 take but what procedural position we would take, and we would rest behind

6 your rights to reply within a 14-day period.

7 JUDGE KWON: Thank you.

8 MS. SELLERS: Thank you.

9 JUDGE KWON: Then I will turn to the issue of disclosure. The

10 first thing mentioned in the submission is for disclosure of forensic

11 materials. Is this matter to be resolved by one of the decisions I've

12 issued yesterday, or it refers to different forensic materials?

13 Yes, Mr. Emmerson.

14 MR. EMMERSON: It may be that in due course Mr. Dutertre will be

15 in a better position to answer that question in full, but our

16 understanding is that the list that appears on page 3, the bullet-point

17 list that appears on page 3 of our memorandum includes a series of items

18 that are not amongst the redacted material, which is the subject of the

19 decision that Your Honour made yesterday.

20 We've set out the history in very short order, and without at this

21 stage rehearsing all of the details or treading over old ground between

22 the parties, the short fact is that a series of deadlines has come and

23 passed by which the Prosecution have promised and been required to serve

24 material in their forensic case, and we are still in the position that

25 quite apart from the redacted confidential material there are significant

Page 196

1 areas of material that have not yet been served in a case which has some

2 not inconsiderable forensic complexities.

3 And Your Honour will see, for example, in the first bullet point

4 that there is a substantial body of DNA identification material which is

5 still outstanding in respect of quite a large number of sets of remains.

6 That is material which is obviously extremely important from the Defence

7 point of view, as is each of the other items.

8 The fourth bullet point, for example, was a -- or is a requested

9 witness statement from the investigator Barney Kelly who has had overall

10 responsibility for the forensic side of the investigation in what, as I

11 say, is a complex case with a series of exhumations and continuity and

12 identification problems. And that is a statement that has been the

13 subject of discussion for more than six months and has been promised on a

14 large number of occasions but is still not forthcoming.

15 Forensic disclosure has been a blight in this case, and the

16 unfortunate consequence of the motion that was filed seeking a further

17 order on redactions appears to have been that the Prosecution has

18 suspended, or partially suspended full disclosure of the forensic material

19 that was otherwise in their possession, and indeed we're told that there

20 were some 2.000 or so pages of material to be served upon us but which it

21 has been held back pending the outcome of a motion on which, as far as we

22 are able at this stage to see, it does not depend.

23 JUDGE KWON: Thank you, Mr. Emmerson.

24 Mr. Dutertre, the items mentioned in the Defence submission, in

25 particular Mr. Emmerson's submission, are those not the items that

Page 197

1 Prosecution pledged to make available by the end of June this year?

2 MR. DUTERTRE: [Interpretation] Your Honour, as for the schedule of

3 disclosure, many things have happened. Many discussions have taken place.

4 It would be difficult to summarise all this in a few words. We don't have

5 enough time.

6 What is sure is that the Prosecution has disclosed everything it

7 received, and what we didn't have we could not disclose to the Defence.

8 What was put on standby was what we received following our motion for

9 protective measures dated 25th of August, 2006, the motion you ruled upon

10 yesterday. But everything else was disclosed to the Defence.

11 In the letter of the 6th of June, 2006, I listed a number of

12 material that should be disclosed and that were disclosed. I also

13 mentioned a number of investigations for which I was not able to state

14 when I would receive the relevant documents, and we have to remember that

15 the Prosecution depends on other organisations for this matter, and we

16 have to wait, and we have to wait the outcome of the work of these

17 organisations in order to get the relevant information.

18 In a way, the Prosecution is in the same position as the Defence.

19 We are waiting for documents as eagerly as the Defence. So as far as

20 receiving and disclosing forensic material, we are on an equal footing,

21 the Defence and the Prosecution.

22 At page 3 of the Defence submissions dated the 11th of October,

23 2006, we find a number of issues, a number of questions, and you've

24 answered a number of them with your decision. But as early as next week

25 we'll disclose the rest of the documents, 2.000 pages, plus all the

Page 198

1 documents we've received since then. A number of documents that are

2 listed there are not here. We do not have. If you think it useful, I

3 could provide additional information to the Defence if you believe that it

4 would be useful for the preparation of the Defence. It might be rather

5 long, but I could do it if you like.

6 JUDGE KWON: Yes, please.

7 MR. DUTERTRE: [Interpretation] [No interpretation].

8 JUDGE KWON: Could you wait a minute.

9 MR. DUTERTRE: [Interpretation] I don't wish to be too long. I

10 shall proceed with each item, one after the other. I should like to start

11 off with the genetic reports.

12 All the genetic reports that have been prepared by the

13 International Commission for Missing Persons have been disclosed over the

14 last few months. We have a number of documents that list those documents

15 that have already been disclosed. We can hand them round right now, and

16 we can clearly identify at which time and which moment these documents

17 have been disclosed. When I say that these documents, I'm talking about

18 the genetic documents, both negative and positive alike.

19 There is some positive genetic material which hasn't been made

20 available to us yet. We hope to be getting this in the next two weeks.

21 This really -- this refers to RR -- RRE21003BP as well as body ACM for the

22 exhumation which took place in 2005. As soon as I get these genetic

23 reports, it will be disclosed to the Defence.

24 As far as the unidentified bodies are concerned, I am afraid, and

25 I can only regret this, that these bodies remain unidentified, and

Page 199

1 therefore we have no genetic reports for the latter. And the two reports

2 which I have just mentioned should complete the list of identified

3 persons.

4 So much for the genetic reports. Perhaps the Defence would like

5 to put questions to me on this matter before I proceed and I could then

6 answer their questions straight away rather than answering all the

7 questions at the end.

8 JUDGE KWON: So briefly the list of disclosed documents, already

9 disclosed documents. Yes. Just a second.

10 Sorry. Mr. Dixon.

11 MR. DIXON: Thank you, Your Honour.

12 If I may, as Mr. Dutertre has just indicated, respond by saying as

13 he has correctly pointed out there are two sets of remains. There are

14 those that are identified and named as such in the indictment; and then

15 there are those that are unidentified and unnamed. There are certain, as

16 Mr. Dutertre has indicated, reports still being awaited for those persons

17 who have been identified; I think it's in the region of about four or

18 five. And it would be good if we could get a confirmation of exactly how

19 many reports are awaited and also by when those should arrive.

20 We were at the last Status Conference, if I may say so, in exactly

21 the same position where Mr. Dutertre was saying that these reports are

22 awaited, there's very little they can do to obtain them and that it's a

23 matter that's out of their hands. And we're now in a position where, once

24 again, we're still waiting for those reports, and it's got to a point

25 where steps do need to be taken to ensure that those organisations are

Page 200

1 followed up by the OTP as quickly as possible to obtain those reports.

2 So that's the first part of it. The second part, it relates to

3 those remains that are unidentified, and they -- in a recent letter sent

4 by the OTP on the 27th of September it was indicated -- and it's

5 approximately 12 of those are still being be examined where DNA reports

6 are awaited. It was the OTP saying that those reports are awaited. And

7 once again, the question should be when do we expect to receive those

8 reports and what steps have been taken to obtain them as soon as possible.

9 JUDGE KWON: Thank you, Mr. Dixon.

10 MR. GUY-SMITH: If I might.

11 JUDGE KWON: Mr. Guy-Smith.

12 MR. GUY-SMITH: Thank you so much. Perhaps once again I'm

13 confused because this is a drum that I've been beating for a long period

14 of time. When the term is used, "DNA reports," I take it what

15 Mr. Dutertre means are conclusions without the underlying information

16 forms the basis of that conclusion. If in fact that is what he means by a

17 report, the Defence has yet to receive that underlying data which forms

18 the basis of the conclusion contained, and to that extent we do not have

19 that information. And this is information that has been under discussion

20 now for close to 10 months, more specifically under discussion for quite a

21 number of months as a result of specific requests by letter sent to the

22 OTP with regard to the underlying information that forms the basis of the

23 conclusion.

24 JUDGE KWON: Thank you. Mr. Dutertre, are you in the position to

25 address those three issues -- or two issues?

Page 201

1 MR. DUTERTRE: [Interpretation] Yes, Your Honour. As far as the

2 genetic reports are concerned, I still expect to receive two positive

3 genetic reports. I know according to the information I have that these

4 reports have been prepared, and I await these to be handed over to me by

5 Minuk. I hope -- by UNMIK. I hope that I will be receiving these in the

6 next two weeks.

7 As far as unidentified bodies are concerned, I regret that these

8 remain identified bodies, and for the sake of the families I regret it, of

9 course.

10 Also, we have looked at genetic profiles, at bone analysis, and

11 there seems to be no direct correlation between blood samples of the

12 families. I can't say any more about this. I think we can reasonably say

13 that no further identification, unless something unexpected occurs, will

14 occur.

15 So these are the two -- these are the reports which will be

16 disclosed over the next two weeks.

17 As far as what Mr. Guy-Smith said, in fact these are the

18 conclusions of the definitive reports. These include the names of the

19 relatives of the victim, the name of the identified victim, and genetic

20 sequences which I've explained in the past. I explained that these were

21 encoded because ICMP, the International Commission for Missing People,

22 wish to protect these people.

23 So as far as these reports are concerned, admittedly we have

24 provided the conclusions. However, there are annexes to our 25th of

25 August, 2006, motion. These annexes will be disclosed as soon as next

Page 202

1 week do -- for a number of victims do meet the requirements of

2 Mr. Guy-Smith. This has to do with the case file of genetic analysis

3 which was sent and which is a very comprehensive file which was sent by

4 the International Commission for Missing Persons. So I'm talking now

5 about cases in which the families have authorised this, because there is a

6 certain amount of personal and confidential data contained in these. When

7 the families could not be contacted or would not grant authorisation for

8 the comprehensive genetic analysis to be provided, then it is the

9 definitive and -- report which has been given to the Defence. For a

10 number of victims the data will be provided as far as next -- as soon as

11 next week.

12 I hope I have answered the questions put by Mr. Guy-Smith and

13 other Defence counsel. Thank you.

14 JUDGE KWON: Any further reply?

15 MR. DIXON: Yes, Your Honour, that was most helpful, but there's

16 still a matter outstanding, and that relates to the remains which are not

17 identified in any form at this point, and Mr. Dutertre says that they

18 remain unidentified, and that's the end of the story.

19 However, and this is the clarification that I seek, is that the

20 Prosecution's letter that I referred to on the 27th of September mentions

21 that a number of DNA reports are awaited from the OMPF.

22 JUDGE KWON: Which mentions 12 of them.

23 MR. DIXON: Yes. Your Honour, and Mr. Dutertre has now said that

24 two further reports are coming. My question is what about the other

25 reports that the OTP have said they are waiting for. When are those due

Page 203

1 to arrive?

2 JUDGE KWON: Mr. Dutertre, can you answer that question?

3 MR. DUTERTRE: [Interpretation] It's difficult to answer this

4 question. If we'd had a positive report between -- in the database, if we

5 were able to establish a correlation between the blood samples and the

6 bone samples, we would then be expecting further reports, but to date I

7 only expect to receive the two reports which I've just mentioned.

8 Once again, I regret this, but the other bodies will probably not

9 be identified unless something unexpected occurs. So that's all I can say

10 concerning this matter.

11 The group of identified persons, after the two reports I've

12 mentioned will be disclosed, should be complete, and I don't think we

13 should expect any further identification unless something quite unexpected

14 occurs. If that's the case, well, that would be the case, but I don't

15 expect it.

16 That's all I can say, Your Honour, about it.

17 JUDGE KWON: Can I take it that you are supposing that there will

18 be no further identification unless something quite unexpected occurs?

19 Yeah, I think that's the farthest we can reach at this moment.

20 Why don't we believe it there and move on to another topic, but I'd like

21 to go back to the original issue of disclosing forensic matters.


23 JUDGE KWON: I heard the -- it would be no problem for the

24 Prosecution to disclose them by next week, so I would order the same time

25 line, by the 25th, Wednesday, the week after. So I order the Prosecutor

Page 204

1 to disclose all the items mentioned in the Defence motion, and if there's

2 anything they cannot disclose, provide the Chamber with the reasons why

3 they cannot disclose those specific items.

4 MR. DUTERTRE: [Interpretation] Yes, of course, Your Honour. We

5 shall certainly disclose everything we have at our disposal which we've

6 received recently, and we shall also disclose in detail all those

7 documents which we -- which we shall receive in the future.

8 JUDGE KWON: So these -- I would like to make sure this access

9 will be granted to the named three Defence counsels' assistants.

10 MR. DUTERTRE: [Interpretation] Yes. All documents will be

11 disclosed. That said, there are a number other issues which relate to our

12 ongoing investigation, and these are items which we shall disclose in due

13 course. But I was referring to all the genetic documents. I was not

14 talking about witness testimonies here.

15 JUDGE KWON: Yes. Thank you. And as for yesterday's ruling I

16 made and having heard the Prosecution's submission, they have no

17 objections. I'm minded to put a corrigendum to that.

18 MR. EMMERSON: I'm very grateful to that, and I'm grateful for

19 Your Honour's indication of a deadline, but I may just have one point

20 clarified?

21 Mr. Dutertre's response is that material in the Prosecution's

22 possession will be disclosed, and of course he's made the point that

23 material that the Prosecution has not received is not in their possession

24 and they cannot disclose it, but if Your Honour were to cast an eye down

25 to the fourth and fifth bullet points on item 3, the fourth is not a

Page 205

1 document that depends on any party outside the Office of the Prosecutor ,

2 it is a narrative witness statement explaining the forensic examination

3 from the point of the Serbian analysis in 1998 right the way through until

4 the DNA analyses that are taking place at the moment. It's -- what has

5 been specified as a request is --

6 JUDGE KWON: I beg your point. Bullet points 4 and 5 on page?

7 MR. EMMERSON: The fourth and fifth on page 3 of our document,

8 Your Honour, which would fall within Your Honour's ruling, are material

9 that must be generated by the Prosecution itself. One is a full narrative

10 explanation of the chronology of the forensic examinations and the

11 exhumations.

12 JUDGE KWON: I beg your pardon. I was looking at a different

13 document. Page 3, bullet points --

14 MR. EMMERSON: Page 3. Fourth bullet point.

15 JUDGE KWON: One of the investigator's statements.

16 MR. EMMERSON: Yes. Just so that it's clear, Your Honour will

17 have seen that there have been --

18 JUDGE KWON: Do you suggest that Prosecution should produce a

19 statement from this investigator?

20 MR. EMMERSON: We've suggested it for many months, it's been

21 promised for many months. Because of the complexity of the forensic

22 investigation -- and therefore that needs now to be the subject of a duty

23 of disclosure and there's been no suggestion that it isn't coming.

24 JUDGE KWON: Which does not exist at the moment.

25 MR. EMMERSON: Well, I don't know whether it exists or it doesn't,

Page 206

1 but if it doesn't it should. And if it doesn't, it must be made.

2 JUDGE KWON: Let's deal with one by one.

3 Yes, Mr. Dutertre.

4 MR. DUTERTRE: [Interpretation] Yes, Your Honour. As far as the

5 testimonies are concerned, there are a number of short testimonies which I

6 would like to talk about. These will be disclosed to the Defence as soon

7 as they are completed and no later than the filing of the pre-trial brief,

8 unless there are a few exceptional cases.

9 As far as Barney Kelly is concerned, he looked after the

10 exhumation that took place in 2005. I think the Defence would like him to

11 discuss the entire genetic process and all the forensic aspects in this

12 case. He was looking after the exhumation that took place in 2005. I'm

13 still waiting for the genetic report to be provided for 2005. This is

14 something I do not have yet.

15 If Mr. Barney Kelly were to complete his statement, it would only

16 be a partial statement and it would have to be completed thereafter. I

17 think this will be completed -- this will be disclosed quickly, but I

18 think I have to get the genetic report first before being able to provide

19 a full answer. And I once mentioned that the deadline should be the same

20 both for Mr. Barney Kelly and the report, in which case we will have

21 Mr. Barney Kelly's statement without the report, and maybe it -- it will

22 be provided to us afterwards.

23 So this is my position so far. If Mr. Barney Kelly has not

24 completed his statement, it's because new information has been coming in

25 August and in September, and it was impossible to have an overall picture

Page 207

1 of what happened in 2005.

2 So much for Mr. Barney Kelly's statement.

3 JUDGE KWON: May I make a suggestion -- Mr. Guy-Smith, yes.

4 MR. GUY-SMITH: If I might, perhaps where the difficulty lies is

5 that the Defence has been too eager in obtaining this information since we

6 were informed on May 16th, the day before one of our 65 ter conferences,

7 that this information would be compiled by the Prosecution and Mr. Kelly

8 would be forwarding that information to us. It was matter that was

9 discussed in the 65 ter on the 17th of May, and at that point we were

10 informed that we would be receiving such a report. So perhaps the problem

11 is that our notion of the passage of time is a bit different than that of

12 the Prosecution. However, I think that at this point in time perhaps they

13 should become a bit more in accord with our notion of time and get us the

14 information, because as you indicated, we are fast approaching a trial

15 date.

16 JUDGE KWON: That is why I was about to make a suggestion to the

17 Prosecution. So would it be plausible for the Prosecution to produce

18 Mr. Kelly's statement to the extent he can say at the moment and put an

19 addendum later on when he receives the remaining of the reports?

20 MR. DUTERTRE: [Interpretation] Yes, it's quite -- it's quite

21 possible, Your Honour, and we can agree with that. We can then file an

22 addendum later on. That would not pose any problem. We could be in a

23 position to provide something to the Defence very quickly. It's very

24 possible.

25 JUDGE KWON: Then when do you think you can disclose Mr. Kelly's

Page 208

1 statement to the Defence?

2 MR. DUTERTRE: [Interpretation] Your Honour, I would need to get in

3 touch with Mr. Kelly to answer this question. I know that he's currently

4 on a mission, or he's going on a mission in the next few days so we are

5 talking about not this week but the following.

6 I'm not quite sure when he comes back from his mission, but I

7 don't want to promise something I can't hold, so next week would not quite

8 be possible but the week after that, I believe.

9 JUDGE KWON: So I would like to put a deadline for that by the end

10 of this month. I think it would be safe. Unless there's any objection

11 from the Defence.

12 MR. DUTERTRE: [Interpretation] Yes, it's perfectly all right, Your

13 Honour.

14 JUDGE KWON: That's done. The next issue, Mr. Emmerson.

15 MR. EMMERSON: Your Honour, the next bullet point, it may well be

16 subsumed within the new amended indictment, but may I just sketch it in

17 and clarify that it is. We have been pressing for some time for the

18 Prosecution to give us the details of the identifications of alleged

19 victims who currently are listed on the indictment as unidentified remains

20 but whom the Prosecution have indicated to us since the spring would be

21 the subject of named particulars, though not necessarily new counts.

22 Now, the Prosecution's position has been, and it's rather an

23 opaque one to follow, but the Prosecution's position to date has been that

24 they could not provide that information until the existing outstanding

25 motion to amend the indictment, to add a new completely unrelated count

Page 209

1 had been determined, because it might affect the overall shape of a

2 consistent new indictment.

3 Providing it is clear that when the Prosecution files the proposed

4 amended indictment in accordance with Your Honour's order, the particulars

5 that we have been pressing for will then be finally included so that the

6 Prosecution will identify in terms whose remains they say they are in a

7 position evidentially to establish the identification of, then that will

8 dispose of bullet point 5.

9 JUDGE KWON: Thank you.

10 Mr. Dutertre.

11 MR. DUTERTRE: [Interpretation] Yes, Your Honour. The question of

12 what I've always called the update of the indictment, adding the name of

13 victims, that will be part of what we mentioned at the beginning related

14 to -- in relation with the indictment. Before filing a second amendment,

15 a motion for a second amendment, we decided to wait for the decision about

16 the first amendment, and we also decided to wait because we had not

17 received the final genetic reports, and I've mentioned that I'm still

18 expecting two of them. But we'll do this as part of the general amendment

19 of the indictment we mentioned previously.

20 All positive genetic reports have been disclosed to the Defence,

21 and they either referred to someone who was named in a specific count of

22 the indictment and then it was very easy to make the connection between

23 the report and the indictment, or you were talking about someone who was

24 not named in the indictment, and here they were covered by Counts 21

25 and 22, unidentified remains. In other words, the Defence has been

Page 210

1 informed gradually and at the same time as the Prosecution of the names of

2 all persons covered by the indictment.

3 Yes, it's true we've stated that we would give additional

4 particulars about these -- the persons covered by Count 21 and 22. We'll

5 do this as part of the amendment of the indictment as a whole, but the

6 statements of the relatives or witnesses who could say something about the

7 identified person, all this has been disclosed to the Defence and thus the

8 Defence has been in a position to see what was the position in -- with

9 respect to each identified persons. That's what we've been doing over the

10 past few months.

11 The Defence has in its possession exactly the same material, the

12 same elements as the Prosecution, and all this is included in the

13 statements of witness or relatives that we have already disclosed to the

14 Defence.

15 Thank you very much, Your Honour.

16 JUDGE KWON: Having heard that, I would rather leave the issue

17 there, and I take it the upcoming amendment will be the final one, and

18 thereby we'll have the final indictment.

19 Then I will turn to another issue, but I look at the clock. I'm

20 not sure. Can I have a word with the court deputy, please.

21 [Trial Chamber and registrar confer]

22 JUDGE KWON: I think we need to have a break. 20 minutes.

23 --- Recess taken at 11.29 a.m.

24 --- On resuming at 11.51 a.m.

25 JUDGE KWON: I was informed that we cannot go beyond half

Page 211

1 past 12.00, so we must bear that in mind.

2 Now I turn to the issues of so-called exhumation materials.

3 MR. EMMERSON: Your Honour, may I introduce that, and in doing so

4 may I say that I'm confident, having had productive discussions between

5 counsel on all sides during the adjournment that we will not come near to

6 the 12.30 deadline, because most of the issues that are outstanding can be

7 dealt with in relatively short order.

8 As far as the exhumation position is concerned, there are 15 sets

9 of remains which the Defence scientists have not yet had an opportunity to

10 examine and whom the Defence would wish to have examined, and these are

11 sets of remains that were returned or repatriated to the families of the

12 alleged victims at a time prior to the point at which the Prosecution

13 involved the Defence and granted access to remains before repatriation.

14 The position at present is that those 15 sets of remains, subject

15 to the obtaining of the appropriate consents, can be exhumed for further

16 examination. As far as this year's concerned, probably up to and

17 including the middle of December or thereabouts, but beyond that the

18 winter conditions will set in and make exhumations impracticable. So time

19 is to an extent of the essence.

20 The Defence approached the relevant authorities within UNMIK for

21 consents to have the exhumations conducted and for the necessary

22 arrangements to be made. UNMIK's initial response was that this was a

23 matter which should be directed to them as a request emanating from the

24 Office of the Prosecutor, so the Defence turned to the Office of the

25 Prosecutor who took the opposite view, namely that having completed their

Page 212

1 forensic examinations with those remains and having repatriated them, the

2 Prosecution no longer has an interest in seeking their exhumation, and

3 it's therefore a matter for liaison directly between the Defence and


5 I should make it clear we have no objection at all to having the

6 matter dealt with directly with UNMIK, but what we would need is a firm

7 request from Your Honour to UNMIK to respond to a Defence request as they

8 would respond to a Prosecution request, so that it becomes clear to UNMIK

9 that requests for these exhumations do not need to be channeled through

10 the Prosecution who do not wish to be the conduit for them. So that's the

11 first point.

12 The second point is that plainly the families's consents will need

13 to be obtained, and under the arrangements governing all exhumations thus

14 far it would be a Prosecution investigator who visited the families and

15 obtained their consents. UNMIK does not undertake that responsibility.

16 And so the consequence of the matter being dealt with in the way in which

17 it is proposed that it should be dealt with is that the international

18 elements of the Defence investigation team, that is to say the

19 international investigators, would need to contact the relatives who --

20 whose consent is required and obtain their consent.

21 Now, the Prosecution, as I understand it, have no objection to

22 that course and neither do they have any objection to UNMIK responding

23 directly to Defence requests to make the appropriate arrangements, nor, as

24 I understand it, to Your Honour making that request, so to speak, formally

25 on the record.

Page 213

1 So there is a practicable solution here, but it does need to have

2 the imprint, if I can put it this way, of a court request, and it does

3 need to have a clear mention on the record that the procedure would

4 inevitably involve contact between Defence investigators and the relatives

5 of the deceased.

6 So that is the proposal, Your Honour.

7 JUDGE KWON: Involvement or confirmation of the Chamber is

8 necessary for the contact with UNMIK, not with the victims.

9 MR. EMMERSON: Your Honour, yes. What I'm inviting Your Honour to

10 do is to confirm so that UNMIK can have the matter brought to their

11 attention that it is appropriate for the Defence to make a request for

12 exhumations directly to UNMIK and for UNMIK to process that request in

13 exactly the same way as they would process a request from the Office of

14 the Prosecutor.

15 As far as the contact with families of deceased are concerned, I'm

16 simply raising it on the public record so that the Prosecution are aware,

17 and indeed they have been made aware independently of this, and so that

18 all parties are aware before such a process were to begin that that would

19 be the mechanism involved.

20 JUDGE KWON: Thank you, Mr. Emmerson.

21 Any observation on the part of the Prosecution?

22 MR. DUTERTRE: [Interpretation] Your Honour, a number of bodies

23 have been repatriated by the OMPF. The Defence has not had access to

24 these remains. The Defence has had access to a number of remains but not

25 to all of them.

Page 214

1 At some point we asked the OMPF to stop repatriating the remains

2 for the Defence to have access to the other bodies. We do not oppose the

3 Defence when it wishes to examine the remains and we do not oppose any

4 request that the Defence might make to have access to these remains, but

5 the Office of the Prosecutor believes that it does not need to involve

6 itself in its operation. We've only taken note of the information

7 provided to us by the Defence. We do not have any specific comments to

8 make about this request.

9 JUDGE KWON: I would prefer to have a written motion in relation

10 to that matter, to give some confirmation in the name of the Chamber to

11 the UNMIK.

12 MR. EMMERSON: Your Honour, we'll undertake to do that very

13 swiftly, but may I simply make the point again that to some extent time is

14 of the essence because of the winter conditions making it impossible for

15 exhumations to take place certainly beyond December and possibly at the

16 back-end of December. So if we were to file the motion effectively within

17 the next few days, might we, given that it's an unopposed motion, ask Your

18 Honour --

19 JUDGE KWON: We'll bear that in mind, Mr. Emmerson.

20 MR. EMMERSON: I'm very grateful.

21 There are, in addition, two further matters raised under the

22 exhumation heading. The first is the location of clothing which was

23 originally found with certain of the recovered remains and photographed.

24 The photographs have been disclosed to the Defence, but as Your Honour

25 will see, our experts wish to examine the clothing itself, and we are in

Page 215

1 this respect entirely reliant on the Office of the Prosecutor to explain

2 to us where and how the clothing items may be found. I mean, in a sense

3 it's a corollary of Mr. Kelly's narrative examination of the forensic part

4 of the case, because somewhere the clothing has become separated from the

5 remains.

6 Now, there have been certain items of clothing transmitted to

7 The Hague, and some material has been made available for examination, but

8 there is a significant quantity of clothing outstanding, and we are

9 seeking the assistance of the Prosecution from its own involvement with

10 these remains in tracing and identifying how and where the clothing can be

11 made available for examination.

12 And the final bullet point makes an analogous point in relation to

13 bullets which were found at various points during the exhumations

14 associated with or in certain sets of remains.

15 JUDGE KWON: Can I hear the Prosecution's position.

16 Yes. Mr. Dutertre.

17 MR. DUTERTRE: [Interpretation] Your Honour, I shall pick up on all

18 these points in the right order.

19 As far as the exhumation is concerned, the Prosecution would

20 rather have the international experts deal with this and not ask whether

21 these people are witnesses for the Office of the Prosecutor.

22 Now, as far as the clothing are concerned and other exhibits are

23 concerned. As far as the clothing are concerned, to begin with, for those

24 bodies which were already repatriated in 2003, the feeling I have is the

25 clothing was handed back to the families as well as the bodies.

Page 216

1 As far as those bodies which have not been repatriated are

2 concerned and which the Defence have access to, the clothing was made

3 available in the morgue of the OMPF in Pristina, and the Defence was able

4 to access these in order to examine them. When we repatriated a number of

5 bodies after the Defence had examined the body in Pristina, we quite

6 clearly asked the Defence whether they would accept that the clothing be

7 handed over to the families at the same time as the bodies, and the

8 Defence at the time did not object to this. So all the clothing which the

9 Defence wishes to examine now, all these clothing are in the hands of the

10 OMPF, clothing which they have had access to when the body was in the

11 morgue in 2006.

12 As for as various items are concerned, exhibit, bullet fragments

13 and other things found during the exhumations, the Office of the

14 Prosecutor has received a set of data. These data were disclosed to the

15 Defence in writing a few months ago, and more recently after the Defence

16 had occasion to look at the bodies in the morgue in Pristina, the OTP

17 indicated that they had further data and asked the UNMIK to seize all the

18 remaining items and hand them over to the OTP.

19 This was indeed done. This was at the end of the August,

20 beginning of September. In a mail addressed to the Defence, I would like

21 to draw the attention here, Mr. Haradinaj's Defence counsel in particular,

22 we have received a new set of exhibits, and I think he wishes to go there

23 around the 19th or 20th of September.

24 Bullet traces, et cetera, were included in an application sent to

25 the UNMIK. The latter have been received by the OTP and handed over to

Page 217

1 the Defence.

2 Now, if certain items need to be addressed in greater detail,

3 perhaps we can discuss this with Defence counsel. After the hearing, we

4 can compare the documents and take stock of the situation with them, if

5 they so wish. I think if we go into the detail of all of this now we will

6 not be able to finish off on time because our time is limited.

7 As far as I can understand, I think the Defence has been able to

8 access everything that has been made available to us, and maybe we could

9 discuss this after the hearing, if necessary.

10 JUDGE KWON: Mr. Emmerson.

11 MR. EMMERSON: Your Honour, I'm grateful for the clarification,

12 and there was some additional information in what Mr. Dutertre has just

13 said.

14 May I endorse his suggestion that rather than take up Your

15 Honour's time with the detail of this, in the spirit of cooperation

16 arrangements might be discussed between the parties to see if we can

17 progress the identification of those missing fragments and ascertain their

18 location, in which case there's nothing further that I need to trouble

19 Your Honour with under the heading of exhumations.

20 Can I deal briefly and in turn with the position as far as other

21 items of disclosure are concerned? May I pass over the first one and come

22 back to it in just a moment because it is, I think, the only one that

23 remains substantially in contention for the purposes of today's hearing.

24 The second bullet point asks for clarification of certain

25 information which was disclosed to the Defence in an incomplete and

Page 218

1 redacted form, and there's been some extended correspondence between the

2 parties about it.

3 Having discussed the matter with my learned friends over the

4 adjournment, the proposal is that by the 24th, the same date that Your

5 Honour has specified thus far --

6 JUDGE KWON: 25th.

7 MR. EMMERSON: 25th, I'm sorry, in respect of other procedural

8 steps, the Prosecution will notify the Defence of the best information

9 that they have in respect of the request that that bullet refers to.

10 The same proposal is made in respect of the following bullet

11 point, which is the source of a public denial by Witness SST7/14 of

12 certain allegations that are made by the Prosecution. The public denial

13 was referred to in an OTP pleading on protective measures, and we have

14 been requesting for some time the source and any record of that public

15 denial, and again that is a matter which the Prosecution have indicated

16 that they will look into and respond to by the 25th.

17 There is nothing that the Defence would wish to raise at this

18 stage in relation to search criteria, save that the Prosecution and the

19 Defence are agreed, as I understand the position, that the Prosecution

20 will provide the Defence with the results of its searches and that as and

21 when and the Defence makes specific requests and invite the Prosecution to

22 run them, then the Prosecution will respond with appropriate expedition to

23 those requests as and when received, and there's nothing further we need

24 to trouble Your Honour with in that respect either.

25 As far as the last bullet point is concerned, it is a request made

Page 219

1 effectively yesterday for confirmation as to whether or not the

2 Prosecution had taken a statement from a named individual -- or I'm sorry,

3 from two named individuals. The position has been clarified in respect of

4 the first. There is no statement from that witness.

5 As far as the second is concerned, again the Prosecution will

6 provide the Defence with an answer by the 25th.

7 That leaves the first bullet point which remains a matter of

8 contention, and may I outline it very briefly. Witness SST7/30 is a

9 witness of some importance to the Prosecution's case against Mr. Haradinaj

10 and a witness whose credibility inevitably is in issue in these

11 proceedings. The Prosecution have disclosed to the Defence an

12 investigator's letter under the reference number that there appears

13 indicating that a source had informed the Prosecution that somebody who is

14 referred to as the agent had been told by Witness SST7/30 that he was

15 willing to withdraw his testimony against Mr. Haradinaj in return for the

16 payment of 5 million euros. In other words, it is an offer by the witness

17 as reported in effect to change his position if a bribe were offered to

18 him. And that's obviously a matter which is highly relevant to that

19 witness's credibility, and we seek to explore it through the source by

20 which this information came to the Prosecution.

21 As matters currently stand as we understand it, the Prosecution

22 does not have the particulars of the agent who was the immediate recipient

23 of that information but does have the particulars of the source. And

24 again I'll allow the Prosecution to clarify their position in just a

25 moment, but as I understand it, the Prosecution take the view that that

Page 220

1 source should now have an effective veto over whether the Defence should

2 be provided with the mechanisms for investigating this because he's not

3 prepared to have -- he or she is not prepared to have his identification

4 disclosed to the Defence so that the matter can be properly and thoroughly

5 investigated. We of course persist in our request that the unredacted

6 material, including the identification of the source of that information

7 be disclosed to the Defence, so that this highly relevant inquiry can be

8 properly pursued.

9 MR. DI FAZIO: Thank you. If Your Honour pleases, Mr. Emmerson

10 has fairly clearly set out the position. The letter was in fact a

11 redacted letter. They -- the Defence were in fact seeking the full

12 disclosure of the full letter. The Prosecution has made clear that it

13 will not disclose that particular document. It's an internal work

14 product, and we're not obliged to disclose it and will not do so.

15 Mr. Emmerson accurately informed --

16 JUDGE KWON: I beg your pardon. It's a work letter. It's an

17 internal work product.

18 MR. DI FAZIO: Yes.

19 JUDGE KWON: It's an investigator's letter, a report or letter --

20 MR. DI FAZIO: Yes, it's an internal memo, if Your Honour please.

21 It's internal material so we're not going to disclose that. I don't know

22 that the Defence are necessarily pursuing that. What I think they're more

23 interested in is the information.

24 Insofar as the agent, the personality referred to as the agent is

25 concerned, the Prosecution doesn't have any details as to his identity or

Page 221

1 contact information for that person.

2 The source has been approached and has been asked if he is

3 prepared to have his personal details conveyed to the Defence, and he has

4 made -- he's adamant that he does not wish that to occur.

5 As I understand it, the source also has no information as to the

6 contact details or identity of the agent, and that's where matters stand.

7 Mr. Emmerson has accurately reflected the situation.

8 The Prosecution does not propose at this stage to provide any

9 further details of the source at this stage. Prosecution is prepared to

10 revisit the issue with the source in an endeavour to overcome this

11 particular hurdle, but at this stage we're not prepared to disclose the

12 contact details of the source.

13 JUDGE KWON: The source -- the identity of that source itself is

14 an information which falls upon the category of 68, does it not?

15 MR. DI FAZIO: The information he provided. The source provided

16 certain information to an investigator.

17 JUDGE KWON: Not the identity itself is the Prosecution's

18 position.

19 MR. DI FAZIO: No. The source is known to the Prosecutor and the

20 investigators. And the source, the person known as the source has been

21 approached with a view to --

22 JUDGE KWON: In order not to --

23 MR. DI FAZIO: In order to provide his - that is, the source's -

24 personal details to the Defence so that the Defence may make whatever

25 inquiries it sees fit. The source has refused.

Page 222

1 JUDGE KWON: My question is whether the Prosecution does not need

2 a protective measures permitted by the Chamber in order not to disclose

3 the identity of that source.

4 MR. DI FAZIO: It --

5 JUDGE KWON: I'm just asking.

6 MR. DI FAZIO: Yes, yes. That may be. That may be a way of

7 resolving this particular issue, but before we were to consent to that or

8 agree to that I think it appropriate that we approach the source once more

9 and see if the matter can be resolved in that fashion.

10 JUDGE KWON: Mr. Guy-Smith.

11 MR. GUY-SMITH: If I might make an observation. I believe the

12 question you asked is, the question that needs to be addressed is not the

13 identity of the source, him or herself, Rule 68 material, and I would

14 observe that it is. And therefore there would be an affirmative duty --

15 JUDGE KWON: Yeah, that's the point of my question.

16 MR. GUY-SMITH: That's what I thought it was, Your Honour.

17 JUDGE KWON: So I would recommend the Prosecution to contact the

18 source again, and in case it does not get the consent of the source come

19 to the Court, come to the Chamber asking for the sort of protective

20 measures.

21 MR. DI FAZIO: With respect, that seems a sensible way of

22 approaching the matter, and we're going to try and endeavour to resolve

23 the issue.

24 JUDGE KWON: We don't have much time. I guess that would resolve

25 the issue of Witness 30.

Page 223

1 MR. EMMERSON: Would Your Honour say again, please, a response to

2 that by the 25th?

3 JUDGE KWON: Would it fit -- how been end of month?

4 MR. DI FAZIO: Well, there's every reason why we should not --

5 there's every reason to try and do that. Of course, it's not quite that

6 easy because it's a live person who has to be contacted and arrangements

7 made.

8 Can I say that the Prosecution will do its utmost to address the

9 issue and come to a final position and convey that to the Defence by

10 the 25th?

11 I just raise for the -- for the Defence and for the purposes of

12 the Court that there may, there may be some difficulties in getting in

13 touch with the -- with the source. That's the only difficulty that I

14 envisage. Barring that impediment, I see no reason why the 25th should

15 not be -- should not be a date by which we get the information to the

16 Defence.

17 JUDGE KWON: Thank you for that submission. I would put a

18 deadline of 25th October, and if there's a -- a good cause on the part of

19 the Prosecution the extension will be granted.

20 Yes.

21 MR. EMMERSON: Your Honour, as far as agreed facts are concerned,

22 I'm not sure how much time --

23 JUDGE KWON: Can I interrupt you there. I wonder -- give me a

24 minute.

25 I wonder the Defence for Mr. Brahimaj responded to the suggestion

Page 224

1 of the Prosecution for the agreed facts at all.

2 MR. HARVEY: [Microphone not activated].

3 JUDGE KWON: Is there anything which was agreed upon among the

4 suggested facts?

5 MR. HARVEY: There was a very limited number of matters on which

6 we were able to offer agreement, largely for the same reasons that

7 Mr. Emmerson outlined in respect of his client, that the proposed agreed

8 facts were essentially amounted to admission to all of the allegations in

9 the indictment. We did provide what we hoped would be a helpful series of

10 questions to the Prosecution seeking a little elucidation of some of the

11 items that -- on which they were seeking agreement so that we could see

12 whether we could get a little bit closer to each other, but we've had no

13 response to that.

14 We did also indicate to the Prosecution that there were certain --

15 certain modifications that we would make to the propositions that they had

16 propounded, and again we've had -- I'll be corrected if I'm wrong, I don't

17 think we've had any response to that.

18 So we've sought as much as possible to provide a constructive

19 response, recognising that this is important to the Trial Chamber and to

20 all the parties to get as close as possible to some kind of factual basis

21 on which we share agreement, but that was provided some two months ago to

22 the Prosecution.

23 JUDGE KWON: Thank you, Mr. Harvey.

24 Can I suggest at this moment to the Prosecution to -- not to be

25 too ambitious in getting the agreements from the Defence but be practical

Page 225

1 and modify or produce new sets of questions which might be practically

2 easily agreeable by the Defence by the end of this month, and let's see

3 what will come out later on.

4 MS. SELLERS: Your Honour, certainly we'll comply with your

5 suggestion. And also we've discussed with our learned friends during the

6 break period the possibility of agreed facts coming particularly in the

7 area of the forensics evidence but in other areas also. The Prosecution,

8 and I believe the Defence counsel agree, that the Defence can suggest

9 agreed facts, just as the Prosecution can suggest agreed upon facts, and

10 that we would keep a very open spirit, both sides, in trying to narrow the

11 issues before the Trial Chamber with what is not contested.

12 JUDGE KWON: I don't think there's much, but how about adjudicated

13 facts?

14 MR. GUY-SMITH: There is a possibility that we may actually be

15 able to do some of that too. I believe based upon the conversations that

16 we had during the break that we'll have a full inquiry by both sides to

17 both of those areas.

18 I don't know whether or not you intend on moving on to another

19 area, and since the issue of agreed facts was mentioned I wanted to go

20 back, if we could, just for a brief moment to the issue of disclosure,

21 just as a general proposition.

22 JUDGE KWON: Yes, please.

23 MR. GUY-SMITH: Because during the break I had an opportunity of a

24 conversation with the Prosecution concerning their obligations under

25 Rule 66 and Rule 68 and was informed, and I want to make sure I say this

Page 226

1 properly, not improperly, that they have fully met their obligations in

2 disclosing those -- those areas of information to us at this juncture.

3 So it is my understanding based upon that assertion that there is

4 no outstanding information remaining except for new information that there

5 may be available as a result of investigations.

6 I'm going very slowly because I don't want to misspeak myself

7 here. I am concerned about making sure that during the middle of trial or

8 sometime during the trial we are not met with some witness statement which

9 would fall under Rule 66 or Rule 68 which has been in the possession of

10 the Office of the Prosecutor or some of their immediate agents for some

11 period of time. And having been involved in a previous proceeding where

12 that issue did arise, I wish to alert the Prosecution about my concern and

13 was quite frankly pleased with the response that I should not have any

14 concerns whatsoever because they have fully met their obligations. But if

15 I've misspoken in any way about what the representation is, I believe

16 Ms. Sellers is probably in a better position to say that I have or

17 hopefully what she'll say is what Mr. Guy-Smith said is absolutely correct

18 and then we won't have to go any further.

19 JUDGE KWON: I'm not sure. Yes, Ms. Sellers.

20 MS. SELLERS: Your Honour, if I might address you and

21 Mr. Guy-Smith. I believe what I did say is very much in line with your

22 representation to the Trial Chamber that we have fulfilled and are

23 fulfilling our obligations under Rule 68, under Rule 66(A) and Rule 66(B).

24 Nevertheless, it is possible, it is possible that while our

25 continuing obligations are being fulfilled that there might be witnesses

Page 227

1 who prior to this time we didn't consider their statements as witness

2 statements or relevant to this case, and so to have a blanket proposition

3 that anything up until today has been disclosed, I think might be slightly

4 misleading and I don't want to do that to the Trial Chamber.

5 Also, I think that we are quite aware that we've already said that

6 there are materials that we will be disclosing within the next couple of

7 weeks. Those materials of course have come in before. And, Your Honour,

8 there are certain instances where we do have to look at the very -- the

9 utmost serious nature of witness protection with some material that we

10 have that can be disclosed.

11 So I think the spirit of what my learned friend is saying is

12 certainly being complied with.

13 MR. GUY-SMITH: I thought it might be an appropriate point shortly

14 after the question that the Chamber had asked with regard to the

15 definition of Rule 68 material and perhaps the Prosecution would be

16 encouraged to be more -- a bit more expansive in the manner in which they

17 choose to define what Rule 68 is because I think we could potentially have

18 a problem, had it not been from the Chamber's guidance, at that particular

19 moment.

20 JUDGE KWON: I see your point, and the point will be taken care of

21 the Chamber. Let's leave the matter there.

22 I'd like to ask question whether Prosecution is minded to file a

23 motion for 92 bis or 92 ter witness statements and expert witnesses.

24 MS. SELLERS: Your Honour, the simple answer is yes, we are.

25 JUDGE KWON: When. The question should be when.

Page 228

1 MS. SELLERS: Then, Your Honour, in terms of the 92 bis

2 statements, as we're in the process of finalising our witness list for the

3 filing of the 65 ter, we would hope to soon after the finalising of that

4 list, and in particular for witnesses that we believe will be called

5 earlier on in the trial to file the 92 bis statements.

6 In terms of the 94 ter statements, 94 bis statements, we'll do

7 that within the procedural guidelines. What we would like to be able to

8 do is to file and to have an open discussion with the Defence counsel.

9 For those they don't oppose, let's move forward with that. I think that

10 will also allow us to present the evidence in a fashion that's much more

11 efficient and possibly much more rapid.

12 JUDGE KWON: When do you practically envision such a motion will

13 be filed?

14 MS. SELLERS: Your Honour, I think --

15 JUDGE KWON: 92 bis and 92 ter.

16 MS. SELLERS: Well, the 92 bis of course would depend on the

17 Defence pre-trial brief. The evidence that we would be presenting we

18 would identify who we believe is to be 92 bis, if there is agreement

19 reached on that type evidence, and I imagine that would be some of the

20 issues that they would raise in their pre-trial brief, we'd be able to

21 soon after then to commence our filing.

22 For those witnesses that we think are 94 bis expert witnesses, I

23 think that we have a clearer idea, and we're just awaiting some

24 identification of one other expert and then some final reports that we

25 would want to attach with expert -- our experts' reports or filings.

Page 229

1 In terms of the 94 quater, Your Honour, we would be going forward

2 as soon as possible. Our intention is to put this before the Trial

3 Chamber rapidly and to have decisions on the use of the evidence in that

4 manner.

5 JUDGE KWON: Thank you. And that will help the Chamber to assess

6 the overall length of the trial in the future. And my intention is to

7 have a next Status Conference just before or just after the winter recess,

8 after having received the 92 bis and 92 ter motion and expert motion.

9 And I will hear any urgent matters to raise at this moment.

10 MR. EMMERSON: Your Honour, I think all parties have put trial

11 date on their agendas as an issue to at least be raised at this --

12 JUDGE KWON: I don't think I have anything to add to what is known

13 at the moment. Next -- early next year will be all I can say, but we will

14 address the issue as soon as possible.

15 And I'd like to ask Mr. Balaj and Mr. Brahimaj if there's anything

16 to say to the Chamber in relation to your custody or anything else.

17 Mr. Balaj.

18 THE ACCUSED BALAJ: [Interpretation] Your Honour, everything is in

19 order. Thank you very much.

20 JUDGE KWON: Thank you, Mr. Balaj.

21 Mr. Brahimaj.

22 THE ACCUSED BRAHIMAJ: [Interpretation] I don't have anything to

23 add, Your Honour.

24 JUDGE KWON: Thank you, Mr. Brahimaj.

25 I noticed Mr. Dutertre stood up for a moment.

Page 230

1 MR. DUTERTRE: [Interpretation] Yes, Your Honour, but I would not

2 have taken the floor if you had not invited me to do so.

3 I just wanted to inform the Chamber that currently at the Radonjic

4 Lake and along the canal work is taking place and that the location is

5 going to be altered, to be transformed. I just wanted the Chamber to be

6 informed about the fact, and I wanted to put this on record. I don't have

7 any further information about this specific matter.

8 Thank you very much.

9 JUDGE KWON: Thank you.

10 Yes, I think that concludes the Status Conference for today.

11 For wrapping up, there are three assistants of Defence counsel to

12 whom access will be allowed can be changed if there's agreement between

13 the parties. That's my understanding.

14 MS. SELLERS: Yes, Your Honour.

15 JUDGE KWON: Thank you. The hearing is now adjourned.

16 --- Whereupon the Status Conference adjourned

17 at 12.30 p.m.