Tribunal Criminal Tribunal for the Former Yugoslavia

Page 255

1 Thursday, 1 March 2007

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.11 a.m.

6 JUDGE ORIE: Good morning, everyone.

7 Madam Registrar, will you call the case, please.

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

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

10 Brahimaj.

11 JUDGE ORIE: Thank you, Madam Registrar. We are here today to

12 have a Pre-Trial Conference under Rule 73 bis.

13 May I have the appearances for the Prosecution first.

14 MR. RE: Good morning, Your Honours. David Re for the Prosecution

15 with Mr. Gramsci Di Fazio, and case manager, Mr. Crispian Smith.

16 JUDGE ORIE: Thank you, Mr. Re.

17 For the Haradinaj Defence.

18 MR. EMMERSON: Good morning, Your Honours. Ben Emmerson, lead

19 counsel for Mr. Haradinaj, together with Rodney Dixon and Susan Park.

20 JUDGE ORIE: Thank you, Mr. Emmerson.

21 Mr. Haradinaj, can you hear me in a language you understand?

22 THE ACCUSED HARADINAJ: [Interpretation] Yes, I do. Thank you.

23 JUDGE ORIE: Appearances for Mr. Balaj.

24 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith,

25 lead counsel, and with me Colleen Rohan and Mr. Bart Willemsen.

Page 256

1 JUDGE ORIE: Mr. Balaj, can you hear me in a language you

2 understand?

3 THE ACCUSED BALAJ: [Interpretation] Yes, Your Honour, I can hear

4 you. Thank you very much.

5 JUDGE ORIE: Thank you.

6 Appearances for Mr. Brahimaj.

7 MR. HARVEY: Good morning, Your Honours. Richard Harvey and

8 Ms. Antoniette Trapani, case manager.

9 JUDGE ORIE: Mr. Brahimaj, can you hear me in a language you

10 understand?

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

12 JUDGE ORIE: Thank you. You may be seated.

13 This case was referred to this Trial Chamber on the 15th of

14 January, 2007, just after the amendment to the indictment was completed.

15 An informal meeting, an informal introductory meeting was held between the

16 parties and the Judges in my chambers on the 26th of January 2007. The

17 main issues discussed during this meeting was the reduction of the

18 indictment. Ultimately, the Chamber decided not to order the Prosecution

19 to reduce the indictment. This was a decision filed on the 22nd of

20 February of this year.

21 During that same meeting, the Chamber granted the Prosecution an

22 additional 3.000 words for its pre-trial brief.

23 MR. HARVEY: You Honour, I do apologise for interrupting. It is

24 very difficult to hear. I don't have the benefit of earphones over here.

25 I don't know if anything could be done about the volume.

Page 257

1 JUDGE ORIE: I'm surprised you don't have the benefit of earphones

2 because there are so many lying around. I would offer my loud voice, but

3 it's not nice for the interpreters.

4 MR. HARVEY: It's much nicer to hear you viva voce.

5 JUDGE ORIE: If I start speaking very loudly, which I can do

6 without any problem, then it is not pleasant for the interpreters either,

7 because it will be loud in their ears as well. So I think we should adapt

8 to either hearing by microphone or not; but if there is any problem,

9 please tell me.

10 MR. HARVEY: Thank you, Your Honour.

11 JUDGE ORIE: Then the first item on the agenda -- you've received

12 an agenda, I take it, with all the main points on it. So we have dealt

13 with the introduction. If there's any question or any issue to be raised,

14 please do so. If not, we'll move on to the second paragraph, that is, the

15 pleas on the revised second indictment.

16 It is the revised second indictment of the 10th of November, 2006,

17 which was confirmed, as I just said, on the 12th of January, 2007.

18 Pursuant to Rule 50(B), a further appearance must be held for each of the

19 accused to enter pleas against counts 1 and 2, 3, 4, 5, 6, 16, 18, 19, 20,

20 21, 22, 23, 24, 26, 27, 28, 29, 31, 35, and 37 of the current indictment.

21 Now, I had in mind just to mention these numbers but -- and then --

22 because I understood that the Defence would be agreeable to just

23 mentioning the numbers and then the accused to enter pleas on these

24 counts. But for a specific reason, I thought it would be better to go a

25 bit more in detail.

Page 258

1 Before I invited accused to enter a plea on these counts, I'd like

2 to have a clarification from the Prosecution, mainly on count 35. Count

3 35, where a crime against humanity or persecution or, alternatively, a

4 crime against humanity, imprisonment, torture, rape, and other inhumane

5 acts, are charged. We see that all accused, and I'm looking at the lines

6 under paragraph 114. Do you see that, Mr. Re?

7 MR. RE: Yes.

8 JUDGE ORIE: You've found it? It reads there that by these

9 actions or omissions, Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj,

10 committed, as part of a JCE, and then counts 35 in two alternatives

11 follows 36 then 37; and then it says in the alternative, Idriz Balaj

12 committed or planned the commission of the crimes described in count 36

13 and 37.

14 Now, 35 is not included. We're talking about the very last line

15 of the indictment itself. If, however, I look at paragraph 23 of the

16 indictment, where it is explained to what extent the accused are held

17 responsible, and 23 specifically for Mr. Balaj, it says that "Mr. Balaj

18 is, apart from responsibility as a participant in a joint criminal

19 enterprise, is individually criminally responsible for his acts and

20 omissions in that he planned, instigated, committed, or aided and abetted

21 the crimes described and charged in" and then a number of counts follow,

22 including 35. But I don't find that set out in relation to 35 under

23 paragraph 114.

24 MR. RE: I'm sorry?

25 JUDGE ORIE: I don't see it.

Page 259

1 MR. RE: I missed a word when someone coughed.

2 JUDGE ORIE: Here we see in 23 it says that Mr. Balaj is

3 individually responsible for planning, instigating, et cetera, and then it

4 gives the whole list, including 35; however, on -- under paragraph 114,

5 the very last line of the indictment - surprises are always kept to the

6 very end - it mentions only 36, 37, and not 35.

7 MR. RE: Yes. All I can say is it appears Your Honours' careful

8 rereading of the indictment has spotted a proofreading error which seems

9 to have escaped the previous Trial Chamber, the combined Prosecution team,

10 everyone else, and it should, of course, in my submission say 35.

11 JUDGE ORIE: Therefore, I don't know how -- well, the Defence has

12 not complained about it either, about its inconsistency. I would be a bit

13 worried about it; but, of course, it's only Mr. Balaj's defence which is

14 affected by it.

15 How is this understood between the parties? That the committing

16 or planning, which is not the full list of paragraph 23 where it speaks of

17 planning, instigating, committing, or aiding and abetting. Has the Balaj

18 Defence read the commission, or planning the commission, of the crimes to

19 include 35 or to exclude 35?

20 MR. GUY-SMITH: I've moved, Your Honour.

21 JUDGE ORIE: I beg your pardon?

22 MR. GUY-SMITH: I've moved to the right. In all honesty, although

23 having noted the distinction between paragraphs 23 and 114, I think it

24 would be fair to say that in the manner in which the indictment is pled,

25 it would include 35.

Page 260

1 JUDGE ORIE: Mr. Re, I take it that you do not oppose this view?

2 MR. RE: No, no. And we, of course, would make an oral submission

3 to amend the indictment to include the number 35.

4 JUDGE ORIE: Yes, to amend or to correct an inconsistency in the

5 indictment where it has been clearly announced in paragraph 23 that 35

6 would be included in the non-JCE responsibility as well.

7 MR. GUY-SMITH: I understand. I believe that had I raised this in

8 the future when I intended to raise it, the Chamber's response would most

9 probably be that it would be a non-fatal variance and that the notice

10 provisions were sufficient under paragraph 23 for purposes of dealing with

11 the matter.

12 JUDGE ORIE: Yes. Could we, just for practical reasons, could we

13 understand your last remark as an oral application for permission to

14 correct the indictment to the extent that count 35 would be included in

15 the very last line of the indictment?

16 MR. RE: Correct.

17 JUDGE ORIE: Yes. Since the Balaj Defence, and I don't think that

18 any of the parties would have an interest in responding to it, since the

19 Balaj Defence does not oppose, permission is granted, Mr. Re.

20 MR. RE: Thank you.

21 JUDGE ORIE: Then we can move on to inviting the accused to enter

22 pleas, not on all counts, because some of them have not added any charges.

23 I'm, therefore, following the decision of the Trial Chamber, which it says

24 on which counts pleas have to be entered.

25 I suggest to do it the following way: I'll read, in an

Page 261

1 abbreviated version, each of the counts. I will always announce who is

2 responsible or is allegedly responsible under JCE or also under

3 individually, and I'll mention exactly what is charged for each of the

4 individual accused. From the agreement to read all the numbers and then

5 have pleas, I would not be surprised if it would be all not guilty pleas.

6 Therefore, I will read -- if on any of these charges one of the

7 accused would consider to enter a guilty plea, I would like to be

8 interrupted; if not, I will just continue and invite the accused, at the

9 very end, to enter a plea on all of the counts, in the modes of

10 responsibility as specifically mentioned, to enter a plea.

11 Is that agreeable to the parties.

12 MR. EMMERSON: Your Honour, yes.

13 JUDGE ORIE: Then count 1 is a crime against humanity,

14 persecution, or, in the alternative, a crime against humanity, torture,

15 and other inhumane acts.

16 Count 2, a violation of the laws or customs of war, cruel

17 treatment and torture and outrages upon personal dignity.

18 On counts 1 and 2, all of the accused are charged with

19 responsibility under 7(1), a joint criminal enterprise. Ramush Haradinaj,

20 also in the alternative, that he ordered, instigated, or aided and abetted

21 the commissions of the crime under counts 1 and 2.

22 Count 3, a crime against humanity, persecution, or, in the

23 alternative, a crime against humanity, torture, and other inhumane acts.

24 Count 4, a violation of the laws or customs of war -- and there I

25 missed the -- let me just ...

Page 262

1 So count 4, a violation of the laws or customs of war, cruel

2 treatment and torture. All accused are charged with responsibility as

3 participants of a joint criminal enterprise. Ramush Haradinaj also

4 charged with, in the alternative, that he committed or aided and abetted

5 the commission of the crimes described in counts 3 and 4.

6 Count 5, a crime against humanity, persecution, or, alternatively,

7 a crime against humanity, imprisonment, torture, or other inhumane acts.

8 Count 6, a violation of the laws or customs of war, cruel

9 treatment and torture.

10 For counts 5 and 6, all accused exclusively charged with

11 responsibility as participants in a joint criminal enterprise.

12 Count 16, a violation of the laws or customs of war, murder, and

13 cruel treatment. All accused on count 16, charged with responsibility as

14 participants in the joint criminal enterprise. Ramush Haradinaj, in the

15 alternative, also charged with having committed or planned or aided and

16 abetted the commission of this crime.

17 Count 18, a violation of the laws or customs of war, murder and

18 cruel treatment.

19 Count 19, a crime against humanity, persecution, or, in the

20 alternative, a crime against humanity, murder, imprisonment, torture, and

21 other inhumane acts.

22 Count 20, a violation of the laws or customs of war, murder and

23 cruel treatment and torture.

24 On these three counts, 18, 19, and 20, all accused charged with

25 responsibility as participants in a joint criminal enterprise. In the

Page 263

1 alternative, Idriz Balaj also charged with having committed or aided and

2 abetted the commission of these crimes.

3 Count 21, a crime against humanity, persecution, or, in the

4 alternative, a crime against humanity, murder.

5 Count 22, a violation of the laws or customs of war, murder. All

6 three accused charged exclusively with responsibility as participants in a

7 joint criminal enterprise.

8 Count 23, a crime against humanity, persecution, or,

9 alternatively, a crime against humanity, murder, imprisonment, torture,

10 and other inhumane acts.

11 Count 24, a violation of the laws or customs of war, murder and

12 cruel treatment and torture.

13 All accused charged with responsibility as participants in a joint

14 criminal enterprise. Alternatively, Ramush Haradinaj, that he committed

15 or aided and abetted the commission of these crimes. Idriz Balaj, in the

16 alternative, that he committed or aided and abetted the commission of

17 these crimes. And Lahi Brahimaj, that he ordered, instigated, or aided

18 and abetted the commission of these crimes described in counts 23 and 24.

19 Count 26, a violation of the laws or customs of war, murder and

20 cruel treatment. All accused charged with responsibility as participants

21 in a joint criminal enterprise. In the alternative, Lahi Brahimaj, also

22 that he ordered, instigated, or aided and abetted the commission of the

23 crimes described in count 26.

24 Count 27, a crime against humanity, persecution, or,

25 alternatively, a crime against humanity, imprisonment, torture, and other

Page 264

1 inhumane acts.

2 Count 28, a violation of the laws or customs of war, cruel

3 treatment, and torture.

4 All accused charged with responsibility as participants in the

5 joint criminal enterprise, but in the alternative, Lahi Brahimaj, also

6 that he committed or aided and abetted the commission of the crimes

7 described in counts 27 and 28.

8 Count 29, a crime against humanity, persecution; in the

9 alternative, a crime against humanity, murder, imprisonment, torture, and

10 other inhumane acts. All accused charged exclusively with responsibility

11 as participants in a joint criminal enterprise.

12 Count 31, a crime against humanity, persecution; in the

13 alternative, a crime against humanity, murder, imprisonment, torture, and

14 other inhumane acts. All accused charged with responsibility as

15 participants in a joint criminal enterprise, and in the alternative,

16 Ramush Haradinaj, that he aided and abetted the commission of the crime;

17 Idriz Balaj, that he committed or planned, instigated, or aided and

18 abetted the commission of the crime; Lahi Brahimaj, that he committed or

19 that he planned, instigated, or aided and abetted the commission of the

20 crime described in count 31.

21 I'll now come to count 35, which I'll put in accordance with the

22 correction for which leave has been granted already; that is, count 35, a

23 crime against humanity, persecution; in the alternative, a crime against

24 humanity, imprisonment, torture, rape, and other inhumane acts. All

25 accused charged with responsibility as participants in a joint criminal

Page 265

1 enterprise. In the alternative, Idriz Balaj, also charged with having

2 committed or having planned the crime described in count 35.

3 Count 37, a violation of the laws or customs of war, cruel

4 treatment, and torture.

5 All accused charged with responsibility as participants in a joint

6 criminal enterprise under Article 7(1) of the indictment -- of the

7 Statute. In the alternative, Idriz Balaj, also that he committed or that

8 he planned the commission of this crime described in count 37.

9 Having read the counts on which you will now be invited to enter a

10 plea, I'd first like to invite Mr. Ramush Haradinaj to enter a plea on all

11 the counts I just mentioned for responsibility as a participant in the

12 joint criminal enterprise, and, where specified, as responsible in another

13 mode under Article 7(1), in the alternative, that is included.

14 Mr. Haradinaj, how do you plead to these counts?

15 THE ACCUSED HARADINAJ: Honourable Judge, I plead not guilty and I

16 am offended by this indictment.

17 [Interpretation] I declare myself not guilty, and I am very

18 offended by these accusations.

19 JUDGE ORIE: Mr. Haradinaj, I invited you to enter a plea, not to

20 give any additional comment. Will you please carefully listen to what I

21 ask you, and then ask leave to make any further comments, if you think

22 that you need to do so.

23 Madam Registrar, could you please put on the record the plea of

24 not guilty entered by Mr. Haradinaj on the counts I just read to him.

25 You may be seated, Mr. Haradinaj.

Page 266

1 Then Mr. Balaj. Mr. Balaj, you are also invited to enter a plea

2 on the counts I've just read. Again, on all of the counts, responsibility

3 as a participant in a joint criminal enterprise, and on those counts,

4 where specified, also responsibility under another mode of commission,

5 under Article 7(1).

6 How do you plead to all these counts?

7 THE ACCUSED BALAJ: [Interpretation] Your Honour, I am completely

8 innocent of all charges.

9 JUDGE ORIE: Madam Registrar, would you please record the plea of

10 not guilty entered by Mr. Balaj.

11 Then Mr. Brahimaj. Mr. Brahimaj, may I invite you also to enter a

12 plea on all the counts I just read to you, all of them in which you are

13 charged with responsibility as a participant in a joint criminal

14 enterprise and on those specifically mentioned, also charged -- where you

15 are charged with another mode of committing these crimes, under Article

16 7(1), as specified.

17 How do you plea to all these counts?

18 THE ACCUSED BRAHIMAJ: [Interpretation] I am completely innocent.

19 JUDGE ORIE: Madam Registrar, would you please record the plea of

20 not guilty entered by Mr. Brahimaj on all the counts.

21 This was item 2 on the agenda. I'd like now to move on to item 3

22 on the agenda, which is pending motions.

23 On the 22nd of February of this year, the Chamber has notified the

24 parties by e-mail that it had denied the Prosecution's urgent motion

25 requesting the revocation of UNMIK's decision-making power on matters

Page 267

1 pertaining to Mr. Haradinaj's provisional release. The written reasons

2 for this decision will be filed with the Registry shortly.

3 Moving on to 3(b). The Chamber recalls that Mr. Haradinaj's

4 motion for a subpoena for certain notes, a motion filed on 12 October

5 2006, has been put on hold. The Chamber will not act on this motion

6 unless requested to do so by the parties.

7 Moving on to 3(c). The Chamber has received Mr. Balaj's Rule 72

8 motion, as well as the Prosecution's response to that motion. We will

9 decide the matter in due course.

10 Under 3(d), we find a confidential Prosecution application for

11 subpoena for a document, which was dated the 26th of February of this

12 year. Although the motion was filed confidentially, there's no need to go

13 into private session; I take it, Mr. Re, that you would agree with that.

14 The Defence for Mr. Haradinaj filed a response, I think it was, yesterday

15 which essentially renders the subpoena request moot. This is also what

16 the Prosecution, meanwhile, submitted, that in the expectation that the

17 document will be received by the Prosecution, I think it was, early next

18 week, that you would withdraw the motion. The Registry is instructed in

19 this respect to change the status of the three filings, until now, from

20 confidential to public.

21 I now move on to item 3(e). The Chamber has received the

22 Prosecution's Rule 92 bis motion dated the 19th of February, 2007.

23 Yesterday, the Chamber also received a response by the Haradinaj Defence

24 but not, I think, from the Defence of the other accused.

25 Is that correct, Mr. Guy-Smith?

Page 268

1 MR. GUY-SMITH: That is correct, Your Honours. I believe you will

2 be receiving a response on behalf of Mr. Balaj momentarily.

3 JUDGE ORIE: Thank you.

4 Mr. Harvey.

5 MR. GUY-SMITH: And by that I mean within the hour.

6 JUDGE ORIE: Yes. For some people, a moment is a second; for

7 others, it's ten years. Thank you for your clarification.

8 MR. HARVEY: Your Honour, you'll be receiving a response a few

9 moments after Mr. Guy-Smith's in relation to --

10 JUDGE ORIE: Is that some 20 or 30 years after that, or a couple

11 of hours?

12 MR. HARVEY: It is more likely to be tomorrow rather than today,

13 Your Honour, but it will be by the end of the day tomorrow.

14 JUDGE ORIE: Thank you for your clarification.

15 The Chamber, of course, will first receive these responses and

16 then decide the matter in due course.

17 MR. HARVEY: Thank you.

18 JUDGE ORIE: Then we'll move on to 3(f). The Chamber is in

19 receipt of an exchange of views between Mr. Balaj's Defence and the

20 Prosecution on the subject of expert reports and on notice given pursuant

21 to Rule 94 bis. In the last filing in this series, the Defence for

22 Mr. Balaj asked the Chamber permission to file a consolidated response

23 once the Prosecution has completed its disclosure of expert reports.

24 Mr. Guy-Smith, the request is hereby granted.

25 Is there any other matter the parties would like to raise under

Page 269

1 this heading of experts? And the Chamber is aware, although we have not

2 read anything yet, that counsel for Haradinaj has filed a submission on 94

3 bis, I think it was, today or yesterday. We haven't read it yet, but we

4 are aware that it was filed. So in addition to what has been filed, is

5 there any need to further address this matter of expert reports?

6 I see, Mr. Emmerson, you are nodding no; Mr. Guy-Smith; Mr.

7 Haradinaj.

8 Then we will move on to 3(g). On the 4th of January in the year

9 2002, protective measures were granted to witnesses K5 and K6 in the case

10 of the Prosecutor versus Slobodan Milosevic. In particular, the Milosevic

11 Chamber ordered that their identities not be disclosed to any members of

12 the public, including "the accused and Defence counsel in other cases or

13 proceedings before this Tribunal."

14 On the 27th of September, 2006, Trial Chamber II ordered that the

15 protective measures previously granted to the two witnesses continue to

16 have effect in the current case.

17 On the 20th of February, 2007, the Prosecution submitted a motion

18 requesting the Trial Chamber to vary the protective measures granted to

19 witnesses K5 and K6 so as to give Defence counsel access to the unredacted

20 testimony of the two witnesses.

21 Rule 75(I) allows this Chamber to deal with an application to

22 "rescind, vary, or augment protective measures." The Defence has not

23 objected to the Prosecution's condition that full disclosure be made to

24 Defence counsel alone, and not to the accused or to any other members of

25 the Defence teams.

Page 270

1 I'd first like to verify whether this is still the position taken

2 by the Defence.

3 Mr. Emmerson.

4 MR. EMMERSON: Your Honour, on behalf of Mr. Haradinaj, the

5 position of the Defence is that the material should, in principle, be

6 available to the accused as well, particularly since the purpose of

7 disclosing it to counsel is to enable the Defence, in due course, to make

8 application to adduce the evidence, if appropriate. However, if the Trial

9 Chamber is inclined to agree with the position taken by the Prosecution,

10 then we are content to proceed on the basis that the material be disclosed

11 to counsel only as an interim measure, subject to any further application

12 that may be made to the Trial Chamber, if, having seen the unredacted

13 material, counsel consider that an application ought to be made to

14 introduce the material into evidence.

15 May I just make two short points of clarification.

16 JUDGE ORIE: May I just ask you before I -- you say an application

17 should be made only if the material had to be introduced in evidence;

18 also, to -- if you considered the material relevant, to discuss with the

19 client whether or not --


21 JUDGE ORIE: -- or is it only if you decided on your own that it

22 needed to be introduced into evidence.

23 MR. EMMERSON: Your Honour, the important point is it would

24 require a further application to the Trial Chamber on one or other ground.

25 JUDGE ORIE: Okay.

Page 271

1 MR. EMMERSON: Two short points of clarification. It is not

2 identification that is in issue so far as the Defence is concerned. What

3 is sought is the redactions of those parts of the material which remain

4 redacted and which, in the case of the testimony, was given in closed

5 session. So what is not sought is revelation of the details of the

6 identities of the individuals or their whereabouts. I simply make that

7 point for the sake of clarification.

8 Secondly, and again it's purely a matter of formality and I don't

9 need to go into it in any detail, I think I'm right in saying that the

10 order Your Honour referred to, having been made in September of last year,

11 granted the access to the de-redacted material, and the Prosecution

12 subsequently applied for a variation of that order so as to keep the

13 material which is currently redacted confidential. And it was in the

14 context of that motion that the Prosecution made the suggestion that it

15 has made.

16 And the third matter is simply a matter of clarification. Up

17 until this point in time, where orders have been made - and there have

18 been one or two - for the disclosure of material to counsel for the

19 accused, it has been agreed between the parties and sanctioned by the

20 Trial Chamber that that expression should extend to legal assistants

21 instructed by the accused. And may we ask that the same principle should

22 apply in respect to this material since inevitably it will be handled by

23 legal assistants, unless very special arrangements are made.

24 JUDGE ORIE: Yes. I take it only those legal assistants which

25 duly appear on the list of --

Page 272

1 MR. EMMERSON: Yes, and their identities are already established

2 with the Prosecution in respect to de-redacted forensic to the materials

3 to be disclosed.

4 JUDGE ORIE: And also under the obligation?

5 MR. EMMERSON: Also under the same obligation.

6 JUDGE ORIE: Yes. Thank you for that.

7 Mr. Guy-Smith, anything to add to that.

8 MR. GUY-SMITH: I would only add two things.

9 One is I think it will become important that, coupled with the

10 de-redacted testimony, we also receive the statements of K5 and K6 in a

11 de-redacted form, because it is very clear from a review of the redacted

12 testimony that we have at this time that there is a great deal of

13 conversation and examination concerning those statements as well. And I

14 think it's necessary, for a complete picture, to have both documents.

15 The only other matter would be a deadline for receipt of the

16 information would be requested.

17 JUDGE ORIE: Thank you, Mr. Guy-Smith.

18 Mr. Harvey, would you like to add?

19 MR. HARVEY: I adopt everything that's been said by both previous

20 counsel and I have nothing to add.

21 JUDGE ORIE: You have the pleasure of being third which now and

22 then saves a couple of words.

23 Mr. Re, two issues. The first, Mr. Guy-Smith asks you to disclose

24 statements as well and; second, he suggests that the Chamber imposes a

25 deadline. Could you express yourself on the two issues?

Page 273

1 MR. RE: Could I seek some clarification from Mr. Guy-Smith? When

2 you say "statements," are you referring to Rule 92 bis exhibits in

3 Milosevic?

4 MR. GUY-SMITH: I am referring to the statements alluded and

5 discussed during the examination of both K5 and K6. Further than that, I

6 cannot go at this time, since I'm unclear as to the precise manner in

7 which those statements were introduced into the trial.

8 JUDGE ORIE: May I suggest that, with the material in hand, that

9 Mr. Guy-Smith and Mr. Re, during the next break, will try to identify what

10 statements we're exactly talking about; then inform the Chamber about it.

11 And I think talking about deadlines, if we do not know yet what statements

12 we're talking about, it might not be a good idea. So to revisit the

13 matter after the break.

14 MR. GUY-SMITH: I'd be happy to do so.

15 MR. RE: Certainly. Just in relation to the matter, could I set

16 out the Prosecution's position in case there's any misunderstanding.

17 The redactions to which my colleagues were referring, of course,

18 relate to the identity of the witnesses. Those are the only matters that

19 I'm aware of that have been redacted from the material, which was on the

20 Milosevic transcript in relation to witnesses K5 and K6.

21 JUDGE ORIE: Yes. Now, there seems to be a difference of opinion

22 on that.

23 MR. GUY-SMITH: I would beg to differ.


25 MR. GUY-SMITH: The identity of the witness, I think, would take

Page 274

1 from the standpoint of a redaction but a few lines. We still have massive

2 redactions contained in the transcripts of testimony that we have

3 received.

4 JUDGE ORIE: Yes, of course, you never know whether the whole

5 family is described.

6 MR. GUY-SMITH: It's very possible, Your Honour. I really have no

7 way of determining that. I'm happy, once again, to sit down with Mr. Re

8 and discuss this matter. Perhaps we can thrash it through and come to a

9 point where we have an understanding, precisely that which has been

10 hidden, whether it is more than identification or not.

11 JUDGE ORIE: Yes. Then the Chamber will hear about it as well,

12 and I apologise for having spoiled your break already in advance.

13 Therefore, then, we'll revisit 3(h) after the break.

14 The next item is the Prosecution request, found under 3(h), for

15 guidance on question of disclosure of statements of witnesses whom the

16 Prosecution no longer intends to call. The request was filed on the 15th

17 of February. The Chamber has decided this matter and will now deliver its

18 decision orally, so this is the decision on the Prosecution's request for

19 guidance of the 15th of February, 2007.

20 In a motion filed on the 15th of February, 2007, the Prosecution

21 requested guidance from the Chamber on whether it must disclose the

22 unredacted statements of protected persons whom it no longer intends to

23 call to trial. The Prosecution's request came two weeks after the expiry

24 of the deadline for full disclosure. On the 19th and the 21st of

25 February, counsel for Mr. Balaj and for Mr. Haradinaj filed their

Page 275

1 positions on the matter. To date, according to the information made

2 available to the Chamber, statements of seven of these persons have not

3 been fully disclosed.

4 The statements were used as supporting materials for the

5 indictment. Rule 66(A)(i) requires disclosure of the supporting material

6 which accompanied the indictment. Both the Prosecution's initial request

7 for protective measures of the 7th of April, 2005, and the previous

8 Chamber's decision of the 20th of May, 2005, that granted these initial

9 protective measures dealt specifically with the disclosure obligations

10 under Rule 66(A)(i).

11 The protective measures were granted under Rules 69 and 75, which

12 do not make full disclosure contingent on testimony at trial. Moreover,

13 the previous Chamber's decisions and orders requiring the Prosecution to

14 disclose the unredacted statements no later than 30 days before trial were

15 not made conditional on the protected persons being called to trial.

16 The Prosecution has not provided any reasons for the redactions to

17 remain in place. In particular, it has not argued that this would be

18 necessary for the safety of the protected persons. The Chamber also notes

19 that the Defence has already been informed of the identities of these

20 persons.

21 The Prosecution is, therefore, directed to immediately and fully

22 disclose all remaining statements that were used as supporting materials

23 for the indictment.

24 This concludes the Chamber's decision, or, I should say, the

25 guidance of the Chamber, including an order to immediately and fully

Page 276

1 disclose.

2 We will then move on to 3(i). That is Mr. Balaj's motion to order

3 UNMIK to lift Rule 70 confidentiality from certain documents. The Chamber

4 invites the Prosecution to update the Chamber on the progress UNMIK is

5 making on reassessing the material that is the subject of Mr. Balaj's

6 motion.

7 Mr. Re, where does UNMIK stand, as far as you know?

8 MR. RE: UNMIK's position is that any witness who has agreed to

9 testify to -- agreed to testify for the Prosecution and in respect of whom

10 they have statements, they will authorise us to disclose those statements

11 to the Defence. In relation to Rule 68, UNMIK assures the Prosecution

12 that it is aware of the Prosecution's obligations under Rule 68. And we

13 are at this very moment attempting to persuade UNMIK that certain material

14 should be disclosed to the Defence, and UNMIK is contacting, I think,

15 three people in Kosovo to speak to them about the security implications of

16 disclosing certain information to the Defence. That's going on this week.

17 I'm saying we've identified three potential pieces of Rule 68

18 information, material that we have that UNMIK has given us, and we have --

19 we are endeavouring to have them provide us with the Rule 70 -- provide

20 the clearance.

21 JUDGE ORIE: Yes. And you say you expect a response early next

22 week? No, you say that's going on this week, which of course would make

23 us expect that at least matters would be clarified by the beginning of

24 next week.

25 MR. RE: We're doing our best.

Page 277


2 MR. RE: I hope so. There is communication between the OTP and

3 UNMIK. I hope so. We're on the telephone to them; we're exchanging

4 correspondence. Our investigators are also speaking to those people.

5 We're doing all that we can humanly do, given the situation.

6 JUDGE ORIE: Yes. Thank you for this update.

7 Is there any need to respond to the situation, as just explained

8 by Mr. Re, Mr. Emmerson?

9 MR. EMMERSON: Your Honours, this is Mr. Guy-Smith's application.

10 I will let him respond.

11 JUDGE ORIE: Yes, I do agree.

12 Mr. Guy-Smith, it might take me a couple of days, but then I'll

13 try not to make similar mistakes.

14 MR. GUY-SMITH: I do not mind periodically for Ben to respond to

15 my applications. That's perfectly fine.


17 MR. GUY-SMITH: I think that Mr. Re's present update raises a

18 number of considerations, and I will ask, first of all, whether or not any

19 of the witnesses who the Prosecution expects to call within the next two

20 weeks are witnesses for whom there are statements from UNMIK. That seems

21 to me to be the most immediate of concerns that I would have.

22 I don't know whether or not you can respond to that. Before I go

23 any further, I think that's probably the first order of business, since we

24 have a trial to attend to.

25 JUDGE ORIE: Mr. Re, Mr. Guy-Smith would, first of all, like to

Page 278

1 know whether any of these witnesses would be -- would appear soon.

2 MR. RE: If Your Honour can give me one moment, I need to clarify

3 something with my colleague here.

4 JUDGE ORIE: Yes, please. Take your time.

5 [Prosecution counsel confer]

6 MR. RE: Happily, no.


8 Mr. Guy-Smith, the answer is no.

9 MR. GUY-SMITH: Well, that's heartening.

10 My second question, then, would be, really, whether Mr. Re is in a

11 position at this point to identify for us those witnesses who have agreed

12 to testify for the Prosecution who have spoken with UNMIK or UNMIK

13 representatives; and, along with that, when we can look forward to seeing

14 the material with regard to those witnesses. And the reason I'm asking

15 this question at this time is because the files, as I understand them to

16 be - and much of the information is anecdotal and some of the information

17 is specific with regard to my experience in a prior case in which we dealt

18 with UNMIK files - is that these files are relatively voluminous; often

19 deal with repeated contacts with the same witness; often deal with

20 contacts in which there is, in fact, a joint effort for investigative

21 purposes by the Office of the Prosecutor and UNMIK so that the actual

22 investigative efforts may, indeed, be somewhat less than a strict Rule 70

23 situation.

24 And further, it is my understanding - and I may well be wrong but

25 I think I'm not - that with regard to each of the specific counts for

Page 279

1 which my client is charged, there is a file, which is an active file, in

2 which investigations have been done by UNMIK; and that information,

3 independent of or in addition to any witness who has agreed to testify,

4 would be relevant to properly and adequately defend Mr. Balaj.

5 So I think we're going to be ultimately in a position where -

6 although I'm heartened by the information that UNMIK at this point

7 apparently is willing to hand over - we're going to be requesting further

8 information. I want to alert you to that at this time.

9 JUDGE ORIE: Before I give an opportunity to Mr. Re to respond,

10 Mr. Guy-Smith, is Mr. Re aware of what file you are now alluding to? Did

11 you communicate that with him? Did you say, "I understand, I may be

12 wrong," but you think you're not, that this and this investigation has

13 resulted in a file to exist.

14 MR. GUY-SMITH: Hope springs eternal and I believe that he is.

15 JUDGE ORIE: Well, if you would have told him, he would be.

16 MR. GUY-SMITH: Well, the reason --

17 JUDGE ORIE: You're now just guessing on whether --

18 MR. GUY-SMITH: No, the reason I put it in those terms, Your

19 Honour, is as follows: We've been having a fair amount of give and take

20 on this issue, and part of the difficulty that we have had has been, very

21 simply, this: I have asked, for example, all files with regard to counts

22 1 and 2. Mr. Re has said, and others before him have said, Well, we're

23 not in a position to tell you whether any files exist with regard to

24 counts 1 and 2 because if we did such a thing that would be, in our

25 estimation, a potential violation of the rule.

Page 280

1 So we've spoken about it in the most generic of terms, but I'm

2 sure that through the number of conversations that Mr. Re and I have had,

3 as well as conversations that I've had with prior prosecutors that have

4 been involved in this matter - and there have been a number of them - that

5 my position is quite clear and they are very clear what we seek and know

6 what files we're referring to.

7 JUDGE ORIE: I understand that there are two issues. The first

8 one, you'd like to know which witnesses would have already agreed to

9 testify, which I take it, but please correct me when I'm wrong, that as

10 soon as the Prosecution enters into an agreement with a witness, a witness

11 protected until then under Rule 70(B), I would say, that we are not in a

12 position anymore that the information shall not be given -- is not to be

13 given in evidence.

14 So I take it that such an agreement would be made only if the

15 entity providing the information would have agreed to that, because

16 otherwise we are leaving the area use solely for the purpose of generating

17 new evidence, rather than the information to be introduced into evidence.

18 But this is my preliminary interpretation of Rule 70(B).

19 Second issue is that Mr. Guy-Smith alludes to a file that, in his

20 opinion, exists, and he more or less announces that he might further

21 pursue that matter.

22 Mr. Re.

23 MR. RE: The information to which my learned colleague,

24 Mr. Guy-Smith, refers which we are endeavouring to disclose to the Defence

25 is not relevant for quite some time in the case, not until towards the end

Page 281

1 of the case. I know what he's talking about; he knows what I'm talking

2 about.

3 JUDGE ORIE: So the only ones who do not know what you're talking

4 about are we, but that's a party-driven system, I would say.

5 MR. RE: I am sorry. We are constrained. There are Rule 70

6 constraints we have here. I can -- I can talk to my colleagues in the

7 break, as much as I can. I'm not sure that there's anything I can put

8 before the Trial Chamber at this precise moment, other than to say that we

9 are working with UNMIK to try and provide -- to obtain provider clearance

10 in relation to certain material we've identified, but it relates to

11 matters well into the trial, a long way down.

12 JUDGE ORIE: Now, Mr. Guy-Smith is also, at least if I've

13 understood him well, is saying that "if there is an agreement with some

14 witnesses, to call them, could we then at least receive that information

15 without further delay?" And I suggested such an agreement partly could be

16 made if there would be no consent of the party who provided the

17 information, because the information would then be introduced into

18 evidence. If you call a witness, then I would say the Rule 70(B)

19 limitations that is solely used for the purpose of generating new

20 evidence, so apart from that information, does not apply anymore.

21 MR. RE: To clarify, the issue is this: Any witness who is on our

22 list who we intend to call and has given a statement to another entity, we

23 have sought the permission of that provider to disclose those statements.

24 That is a statement, for example, in other investigation. What we're

25 looking at now is whether any material that we could view as Rule 68, in

Page 282

1 our view, and we are endeavouring to clarify that matter with providers.


3 MR. RE: As far as I know, we have disclosed all prior statements

4 of all witnesses on our list, as far as I can ascertain. So we've moved

5 into a -- we've moved into a --

6 JUDGE ORIE: We're moving away from agreements with witnesses to

7 testify, and we limit ourselves at this moment to the witness list. I

8 mean, as soon as there is an agreement and there's a need to call a

9 witness, we expect this - I'm sorry - we expect this witness to appear on

10 the witness list as soon as possible. Is that -- I leave it to you,

11 Mr. Re, and to you, Mr. Guy-Smith, to have a further conversation.

12 We might need even a bit of a longer break. We'll hear from you

13 and we'll then see whether the Chamber is in a position to decide on the

14 motion; or whether we should rather wait. And if you would, at this

15 moment, prefer to put the motion on hold, we'll hear from you as well.

16 MR. GUY-SMITH: Very well.

17 JUDGE ORIE: Yes, thank you. So we'll revisit the matter after

18 the break.

19 Then I move on to -- I think this completed item 3 on the agenda.

20 Is there any other matter to be raised in relation to any motions?

21 Mr. Emmerson? Mr. Guy-Smith? No, Mr. Harvey?

22 Then we'll move on to item 4, which is mentioned, state of

23 disclosure. Could I ask the parties, first of all, for an update.

24 Mr. Re, could you update the Chamber with your views on the state

25 of disclosure at this moment.

Page 283

1 MR. RE: As far as I can ascertain, with Rule 66(A)(ii) [Realtime

2 transcript read in error "68(A)(ii)"], there are two witnesses whose prior

3 testimony is in the process of being disclosed. As far as I can

4 ascertain, to the best of the searches which I have asked to be done, it

5 appears that we have disclosed all prior statements.

6 JUDGE ORIE: Just to verify, did you say 66(A)(ii) or did you say

7 68? It's my recollection that you said 66, but I might be wrong.

8 MR. RE: Yes. 66.

9 JUDGE ORIE: On the transcript it reads 68, so that should then be

10 are corrected.

11 MR. RE: There are outstanding transcript in Albanian. There are

12 38 days of prior testimony of witnesses in Albanian which have to be cut

13 onto tapes by the Registry and given back to us. Now, it's a matter for

14 the Defence if they want the prior testimony on an Albanian tape or are

15 content with the English transcripts which we've already disclosed to

16 them.

17 JUDGE ORIE: Any other matter to update the Chamber upon?

18 MR. RE: With Rule 68, we have a system in place, we have

19 searches; and as we find material, it's of course ongoing.

20 JUDGE ORIE: Yes. Mr. Emmerson.

21 MR. EMMERSON: Your Honours, I can approach this, if I may, with

22 five bullet points.

23 We've obviously reviewed all of the material that the Prosecution

24 has served against its pre-trial brief. We believe that there are four or

25 five -- four or possibly five statements which are referred to in the

Page 284

1 Prosecution's pre-trial brief which have not so far been disclosed to the

2 Defence, and I will provide Mr. Re with a list of those witnesses during

3 the course of the day.

4 Secondly, Rule 65 ter exhibits. We have been working through the

5 index provided by the Prosecution to the Rule 65 ter exhibit list to

6 determine whether all of the material has been served on the disk provided

7 by the Prosecution to accompany the Rule 65 ter exhibit list. The

8 documents that we have been able to copy and produce from the disk run, so

9 far, to nine binders. Reviewing that against the exhibit list, there are

10 just under 500 documents where the translations have not been provided,

11 and there are a small number of documents where the originals and the

12 translations have not been provided.

13 Now, it is possible that some of those documents or translations

14 may have been disclosed by the Prosecution in earlier batches of

15 disclosure, although there is no obvious immediate means of

16 cross-referencing the one to the other. It's obviously a relatively

17 time-consuming exercise and it might be simpler, therefore, if the

18 Prosecution were simply to supply to the Defence the remaining documents

19 which are listed on its Rule 65 ter exhibit list that have not so far been

20 served.

21 Just to give Your Honours a flavor - and this is an issue I'm

22 going to, if I may, come back to briefly under "Any Other Business" - we

23 have already identified some important, or potentially important, and very

24 lengthy exhibits, hundreds of pages, which have not been served and which

25 relate to witnesses who are due to be called in the first week of the

Page 285

1 trial. I say they haven't been served. They had not been served until

2 very late last night when, in response to chasing by the Defence, they are

3 eventually disgorged. There's other material, we understand, on the way.

4 But suffice to say, for present purposes, that the Rule 65 ter

5 exhibits do not correspond with the list in full; and that it is clear

6 that in some important respects and urgent ones, there are documents which

7 have never been disclosed that are on the Rule 65 ter exhibit list, or

8 translations that have never been disclosed.

9 Thirdly, if I may, translations generally. There are a large

10 number of potentially important contemporary documents for which

11 translations do not exist. Examples include, and I've mentioned these

12 before, all of the exhibits to the statements of General Bozidar Delic and

13 General Dragan Zivanovic, the two JNA generals whose areas of operation

14 intersected the region referred to in the indictment. Certainly, so far

15 as General Delic is concerned, his witness statement as it stands does

16 little more than to produce these exhibits, and without the exhibits his

17 testimony is essentially incomprehensible.

18 There are also a series of contemporary documents produced by

19 Judge Radomir Gojkovic, the investigating judge tasked with the

20 investigation of the late Radonjic Canal inquiry. Again, these documents

21 remain untranslated.

22 Now, we understand that the Prosecution has in its possession, and

23 has had for some considerable time, unofficial translations of this

24 material in English; and at the last 65 ter meeting on the 11th of

25 January, the Prosecution agreed in terms to provide those unofficial

Page 286

1 translations to the Defence. They have not done so.

2 Four, Rule 66(B). There are a number of --

3 JUDGE ORIE: May I just, for better understanding, under item 3,

4 you said there were no translations of contemporary documents. Would that

5 be -- would those be among the 500 not translated you mentioned under --

6 in relation to the 65 ter exhibit list?

7 MR. EMMERSON: The process of correlating the two is one which we

8 will need to do --


10 MR. EMMERSON: -- because it may be that some of the exhibits that

11 are appended to the statements have not found their way into the

12 Prosecution's exhibit list. But it's perfectly reasonable to assume that

13 there will be a substantial element of cross-over between the two.

14 JUDGE ORIE: I'm sorry for interrupting. Please continue with

15 number 4.

16 MR. EMMERSON: 4, Rule 66(B) requests. There are a number of Rule

17 66(B) requests which have been outstanding for several months. Can I just

18 give Your Honours one or two short examples. They are all recorded in

19 correspondence between the parties. The Prosecution knows exactly which

20 requests remain outstanding.

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 287

1 (redacted)

2 MR. RE: Can we move into private session, please.

3 JUDGE ORIE: Yes. We'll move into private session.

4 [Private session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 288

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 MR. EMMERSON: Your Honour, there are a number of other Rule 66(B)

15 requests that remain outstanding --

16 THE REGISTRAR: Sorry, Your Honours, we're in open session.

17 JUDGE ORIE: Yes, we are in open session. Thank you,

18 Madam Registrar.

19 Mr. Emmerson, please continue.

20 MR. EMMERSON: -- and I'm very happy if it would assist Mr. Re to

21 remind him of those passages, of those requests that remain outstanding,

22 to provide him today or certainly tomorrow with an aide-memoire. But he's

23 certainly aware from correspondence of the requests that have been made

24 and that have not so far been met.

25 The fifth and final point under this heading is that Mr. Re

Page 289

1 informed me yesterday that he is expecting a batch of material from

2 Belgrade shortly. I have asked him to review this material urgently and

3 to concentrate in particular on those witnesses who are due to give

4 evidence in the first two weeks, because I think it may well be that in

5 respect of at least one of those witnesses, the Prosecution has an

6 outstanding request for the service of -- the provision of material from

7 Belgrade. And we would obviously not wish to find ourselves in the

8 position that that material was served either during or after the witness'

9 testimony, or indeed immediately before.

10 So those are the five bullet points.


12 Mr. Guy-Smith, anything you'd like to add?

13 MR. GUY-SMITH: Yes. I fully concur in the remarks made by

14 Mr. Emmerson.

15 I have a bit of a concern. Over a year ago, in a 65 ter

16 Conference, I indicated at that time that one of the most difficult and

17 wearisome ways of trying a case is by being in a situation where there is

18 late disclosure or ongoing disclosure as the case proceeds. It only -- I

19 think it only causes more of a burden for the efficiency of a trial. At

20 that time I suggested that there may come a time when Defence would ask

21 for sanctions either by way of rulings of finding an adverse inference or

22 the exclusion of evidence. I was scolded at the time and told that my

23 concerns were somewhat premature.

24 I find myself not yet in a position where I am asking for any

25 sanctions, but I'm becoming increasingly more concerned about that. And I

Page 290

1 know the efforts that have been going on by Mr. Re, who has inherited this

2 case from others, so I'm not laying the full responsibility at his feet.

3 However, as we all understand, in a world where command responsibility is

4 something that is well understood, it is now his army and he's responsible

5 for it.

6 My real concern comes --

7 JUDGE ORIE: I don't have to remind you of the case law before

8 this Tribunal where a commander enters after the fact, that he's not --

9 MR. GUY-SMITH: Yes, Your Honour.

10 JUDGE ORIE: I'm not commenting on it --

11 MR. GUY-SMITH: Very well.

12 JUDGE ORIE: -- apart from Mr. Re not, for me, having the

13 appearance of the commander. Let's keep it serious.

14 MR. GUY-SMITH: I certainly don't intend to --

15 JUDGE ORIE: I understood you well, that you have some compassion

16 with someone who has to take over. Yes.

17 MR. GUY-SMITH: Part of my concern is this: With regard to the

18 first two witnesses who are now contemplated, their statements were taken

19 in 2002. That's five years ago or close to five, depending on what

20 particular month. And there still is information with regard to their

21 statements internally that has been in the possession of the Prosecution

22 that we do not have.

23 I was reviewing another witness, who we will see in the future.

24 He is further down the line. He's presently identified as witness number

25 67. He's SST7/717. His statement was taken in 2004. There is an annex

Page 291

1 to his statement, and apparently he delivered a fair amount of information

2 at that time to an investigator of the OTP. We don't have that

3 information.

4 I'm not at this point going to go through a laundry list of each

5 and every witness in which I believe this problem exists; however, I think

6 this is a problem that we may be visiting more often than any of us would

7 like, and I don't know what the remedy is for.

8 Some time ago in my previous tenure with the ADC, I had proposed a

9 rule change involving the duty of the Prosecution to supply all this

10 information months before a trial commences. I understand the

11 difficulties that exist in the preparation of a trial for both sides;

12 however, I am quite concerned that there are going to be substantial

13 amounts of information given to us late in the day which will necessitate

14 either a request for a break in the proceedings, some form of continuance,

15 or, of necessity, longer examinations, because we will not have been in a

16 position to integrate the information and focus on the information in a

17 way that I know all of my colleagues would do.

18 I don't have anything further to say at this time. I'm trying to

19 set a marker here, and it's not a marker of criticism but more of concern,

20 because I think it's going to dramatically affect the course and scope of

21 these proceedings.

22 JUDGE ORIE: Mr. Guy-Smith, your concern and your marker is on the

23 record, and I do understand that you reserve your rights in this respect.

24 MR. GUY-SMITH: Thank you.

25 JUDGE ORIE: Mr. Harvey.

Page 292

1 MR. HARVEY: Your Honours, I share fully the concerns that have

2 been raised by Mr. Guy-Smith and the specific bullet points that

3 Mr. Emmerson has indicated to you. Oscar Wilde had famously said, "If I

4 had longer, I would have been shorter." And the longer that we have to

5 review these materials, the more concise, well-formulated and brief our

6 questions will be. The delay in providing them places an enormous strain

7 on all concerns and, indeed, on the Chamber's timetable. I don't think

8 there's anything I can add; other than, if I do so, would put even further

9 strain on the timetable. But it is something that has to be addressed as

10 a matter of extreme urgency.

11 JUDGE ORIE: Thank you, Mr. Harvey. Also for the new version of

12 what I knew to be, "I did not find time to write you a shorter letter than

13 this long one."

14 Mr. Re, I'd like to give you an opportunity to respond after the

15 break, because we'll need a break now; but before the break, I'd like to

16 know -- Mr. Emmerson mentioned a batch of material from Belgrade, which I

17 understand is newly to be disclosed. I may take it that you have not

18 received that years and years ago but recently; is that correct?

19 MR. RE: It's more than newly to be disclosed; it's newly to be

20 analysed. I am told that the material, the Serbian authorities we have

21 requested -- sorry, we have requested material from the Serbian

22 authorities, and it was arriving at the Belgrade office yesterday and was

23 to be brought here today.

24 JUDGE ORIE: Yes. If we are talking about a moment, it was

25 received only a moment ago. Thank you. I'll give you an opportunity to

Page 293

1 respond to these concerns and these observations made by the Defence after

2 the break.

3 We'll adjourn until ten minutes past 11.00.

4 --- Recess taken at 10.40 a.m.

5 --- On resuming at 11.14 a.m.

6 JUDGE ORIE: Mr. Guy-Smith, you're on your feet.

7 MR. GUY-SMITH: Yes, I am, Your Honour. If I might, before Mr. Re

8 responds, I have been corrected by Mr. Willemsen with regard to one of the

9 statements I made. I was looking at the wrong column with regard to

10 SST7/17. I indicated there was information we did not have, and I

11 misspoke myself. I should have said that there is information that we

12 have not yet had translated. There are other individuals who could take

13 that particular witness' place, but as I said before, I'm not going to go

14 through a laundry list. So I wanted to correct the record in that regard

15 so that --

16 JUDGE ORIE: Yes, that's on the record. And it saves Mr. Re

17 perhaps one or two lines in his response.

18 Mr. Re, you have an opportunity to respond to various obligations

19 and responses expressed in relation to disclosure.

20 MR. RE: The Prosecution, of course, understands its obligations,

21 and we understand and take very seriously the difficulties faced by the

22 Defence in meeting the case. The system we have isn't a perfect system.

23 We are endeavouring, and I'm endeavouring, to put in place better systems

24 to enable us to identify all material that should be disclosed to the

25 Defence and done so in a timely manner.

Page 294

1 Mr. Emmerson raised the matter of the translations and the

2 in-house translations. A problem does exist within our internal system,

3 and we are trying as hard as we can to identify all the internal

4 translations; and if I had my way, I would have given them to the Defence

5 on the same way. We haven't been able to do so. We are still trying to

6 identify them and disclose them, and we are disclosing them as we identify

7 them. I understand this isn't particularly acceptable, but I'm afraid

8 that's all -- all we can do in the circumstances.

9 In relation to the Delic matters, I am informed, and I am trying

10 to put in place a system in which we can correctly identify all the

11 material relating to General Delic. There are a number of documents

12 referred to in his statement. A number of those have been translated

13 in-house. We are still attempting to identify which ones they are and to

14 get them to the Defence as soon as we possibly can.

15 Now, it is, of course, in the interests of the efficient and

16 smooth running of the trial, the Prosecution's interest, the Defence's

17 interest, and the Trial Chamber's interest that we do so as soon as

18 possible. Unfortunately, I cannot give a date for that. We have several

19 people working on identifying this material and getting it into a -- and

20 getting it to the Defence as soon as we can.

21 In relation to the exhibit list and the number of translations,

22 there are a number of duplicates on the exhibit list, the Rule 65 ter

23 exhibit list. We are getting to a stage where we think we have identified

24 almost all of the duplicates.

25 We will have to file an updated list which, of course, with leave

Page 295

1 of the Tribunal -- Chamber, of course, and it will reflect translations

2 which we have identified in-house and are no longer pending; it will

3 identify duplicates and will identify those which we'll not rely upon

4 because they are duplicates; and importantly, it will also identify a

5 number of documents, many documents, which relate to the identification

6 of, I think it was, 22 bodies in respect of whom we anticipate agreement

7 with the Defence as to who the bodies -- whose bodies they were, and they

8 will have to be -- and any documents relating to that will come off the

9 list.

10 So unfortunately, and I know it's -- all I can do is apologise for

11 the lateness of this. We are, of course, looking at the first witnesses

12 and whether any of those are affected by this. Mr. Emmerson correctly

13 says that the documents coming from Serbia may impact upon one of the

14 witnesses, and that would be on the list which I provided this morning,

15 witness number 7 -- I'm sorry, witness number 8. It's the most likely

16 witness in respect of whom Serbian documents may be applicable, but we

17 won't know until we receive them and look at them, which we intend to do

18 as soon as we get them, hopefully later today.

19 Mr. Emmerson is providing us with a list of material which he --

20 which his team has identified as outstanding or there are translation

21 issues. We will work on that as soon as we get it, and the Prosecution

22 case managers will work with the Defence case managers to try and

23 ameliorate the situation as best as we possibly can.

24 In relation to K5 and K6, there is no impediment to providing the

25 information to the Defence today - I've communicated that at least to

Page 296

1 Mr. Guy-Smith - and we'll get that to them today.

2 Were there any other matters that Your Honours wished me to

3 address?

4 JUDGE ORIE: Yes. And I do understand that all Defence counsel

5 will accept that material under the condition, as stipulated by Mr. Re,

6 and if they feel there is any need to share the information outside the

7 limited circle of the Defence teams, not including the accused, that

8 they'll further address the matter.

9 You well understand that the Chamber does understand that, I would

10 say, usually counsel would receive such information in order to share it

11 and discuss it with their clients, and that since there seems to be

12 agreement on the conditions, that the Chamber is not bound in any way at a

13 later stage to say, "Well, of course, for this and this reasons, you're

14 entitled to share that with your --"

15 We'll decide that on the merits of what you produce then,

16 irrespective of the agreed limited disclosure, I must say, agreed among

17 the parties. Of course, this -- the Chamber, of course, would not oppose

18 any such disclosure at this moment. Whether that would be a kind of

19 disclosure the Chamber would order if the Chamber would have been

20 requested to make a ruling on it is a different matter. So if it ever

21 comes to that, the Chamber will then hear whatever submission,

22 irrespective of what the parties agreed upon at an earlier stage.

23 Yes. If that's understood, then, of course, no ruling is needed

24 at this moment. Just the parties proceed as they wish. And the mere fact

25 that the Chamber has been informed about it is not in any way indicative

Page 297

1 of whether the Chamber considers this what a Chamber order could also

2 contain.

3 Then you said is there anything else. Well, Mr. Re, from what

4 I -- of course I hear you speaking, I hear that we should improve the

5 system; we are, of course, trying to do our utmost best. I didn't hear

6 any expression of doubt, whether you did your utmost best. I think the

7 issue might, sooner or later, be that when you say, "I am doing my best

8 and the best can do no more," that the Defence would then say, "The best

9 is not good enough."

10 Of course, the Chamber might have more understanding for not

11 having fully digested material received yesterday; whereas, the Chamber

12 might have more difficulties in understanding that provisional

13 translations, being made already quite some time ago, have not yet been

14 identified as relevant to certain documents and therefore not being

15 disclosed. I mean, that's -- but at this moment concerns have been

16 expressed, and they are on the record.

17 The Defence teams have reserved their rights and that's on the

18 record as well, and, of course, the proof of the pudding is in the eating.

19 We're all struggling with the huge amount of material in these kinds of

20 cases, and I feel that there's mutual understanding for it. But as the

21 French say, "To understand everything does not" -- I'll say it in

22 French: "Tout comprendre, c'est tout pardonner." "If you understand

23 everything, then everything would be excused." That's, of course, not the

24 case. That would not be the standard in this -- in these trials.

25 Is there anything else specifically related to disclosure the

Page 298

1 parties would like to address at this moment? Because there have been

2 some conversations during the break as well.

3 Mr. Guy-Smith.

4 MR. GUY-SMITH: Yes. I think that leaves us with the remaining

5 matter of UNMIK, and I think it is --


7 MR. GUY-SMITH: -- fair to say that we need to have further

8 discussions. I was going to actually try to use the new electronic system

9 and publish a letter; but I think that if I read the letter, which is

10 quite quick, it will explain to you a fair amount of the dilemma that we

11 find ourselves in. This is a letter dated the 12th of February, and it is

12 from UNMIK concerning disclosure requests that I had made.

13 "Dear Mr. Guy-Smith, I refer to your three requests addressed to

14 the Special Representative of the Secretary-General, Mr. Joaquim Rucker,

15 dated 5 and 6 February 2007, regarding the ICTY case against Ramush

16 Haradinaj et al, in which you seek the disclosure of UNMIK CCIU police

17 investigation files, as well as disclosure of protocols, guidelines,

18 training, or other relevant manuals and instructions relevant to photo

19 identification procedures used by UNMIK police investigators in their

20 investigations related to the indictment against Ramush Haradinaj et al,

21 to prepare the defence of your client, Mr. Idriz Balaj.

22 "Consistent with the e-mail to you from Mr. George Huber dated 28

23 November 2006, in response to your request of 10 November 2006, for

24 disclosure of materials provided by UNMIK to the ICTY Office of the

25 Prosecutor (OTP), we do not make discovery to the Defence. The obligation

Page 299

1 to disclose evidence belongs exclusively to the ICTY Prosecutor.

2 Accordingly, your request should be addressed to the OTP."

3 This letter was in response to, obviously, a letter in which I'd

4 asked for not only for general but specific information, which occurred

5 after I had made a specific request to the OTP for disclosure of

6 protocols, guidelines, training, or other relevant manuals and

7 instructions relevant to photo identification procedures used by UNMIK

8 police investigators, at a point in time when we were battling through the

9 issue of photo identification and trying to get that particular part of

10 the disclosure completed. I was told by the OTP and by Mr. Re quite

11 kindly to refer my inquiries to UNMIK. UNMIK has told me to refer my

12 inquiries to the Office of the Prosecutor.

13 I've had a brief conversation with both Mr. Re and Mr. Dutertre

14 during the break. I think that we may be able to cobble together some

15 form of common approach to UNMIK. I'm not positive about that, but I

16 think we probably will need a day or two, certainly over the weekend, and

17 then we will probably report back to you on this issue.

18 JUDGE ORIE: Therefore, your suggestion is that the Chamber would

19 not decide at this moment but give it another few days, to see whether a

20 solution is found; if not, the Chamber will rule on the matter. Is that

21 it?

22 MR. GUY-SMITH: That's correct, Your Honour, and I thank you.

23 JUDGE ORIE: Yes. There was one matter under 3(g), but I think

24 that has been resolved as well. The disclosure to Defence counsel alone

25 is not a need of a deadline anymore. Is that -- Mr. Re, may we understand

Page 300

1 that the agreement of disclosure, that is, K5 and K6, that that will take

2 effect immediately?

3 MR. RE: Today, yes.

4 JUDGE ORIE: Today, yes. So there's no need for a deadline there.

5 We have completed agenda item 4, unless there is a need to further

6 address disclosure issues. I do not see any request.

7 Then, next item on the agenda, agreed facts. Is there any way to

8 receive a joint report on agreed facts, either optimistic or pessimistic,

9 but who can I give the floor?

10 Mr. Emmerson.

11 MR. EMMERSON: I think Your Honour may recall that we submitted a

12 written report to the Trial Chamber on the 2nd of February, explaining

13 what was then the state of progress on agreed facts proposals put forward

14 by the Prosecution. In short, on behalf of Mr. Haradinaj, we have

15 responded in full to all of the agreed facts proposals which the

16 Prosecution has so far put forward, and that leaves two matters

17 outstanding.

18 First, Your Honours are aware that the Defence served on

19 Prosecution and, for information, on the Trial Chamber as well a set of

20 proposed agreed facts addressing the military and political background to

21 the case. That was served on the 15th of February. Those suggested

22 agreed facts were drawn from statements and testimony of witnesses relied

23 on by the Prosecution in this and other cases, and from the Prosecution's

24 own statements about the military position in Kosovo in the Milosevic case

25 and in the Milutinovic case.

Page 301

1 And they were, as Your Honours know, supported by a file of

2 documents containing all the relevant citations and extracts to make the

3 Prosecution's task of responding somewhat easier; and also in recognition

4 of the fact that if agreement cannot be reached, the Defence may well, in

5 due course, seek the admission of that material or, where appropriate, a

6 ruling on adjudicated facts insofar as the material was drawn from

7 adjudicated facts, particularly in the Limaj judgement. We are awaiting

8 the Prosecution's response.

9 The second issue relates to post mortem examinations. As we

10 pointed out in the same report of the 5th of February, it has been agreed

11 between the parties that the Prosecution would put forward to the Defence

12 agreed facts proposals on the post mortem examinations conducted by

13 international forensic pathologists following exhumations in 2002 and the

14 successive years. In order for us to be able to respond to that material,

15 obviously, we have to have the proposals, and as yet they have not been

16 provided.

17 The Prosecution has, as Your Honours know, provided expert witness

18 statements and sought the response of the Defence and the response has

19 been provided. But, in essence, the response is that the appropriate way

20 of dealing with this is by way of agreed facts proposals for the reasons

21 we have there set out, and there's been no indication from the Prosecution

22 that they have altered their position that they will be producing agreed

23 facts proposals. As I say, that was spelt out in our report of the 2nd of

24 February and there's been no demure of that from the Prosecution.

25 So those are the two outstanding matters.

Page 302

1 JUDGE ORIE: Therefore, military matters and post mortem

2 examinations. Any of the other Defence want to add anything? I see no

3 response.

4 Then, Mr. Re, no response yet on military matters and no

5 proposals, as far as post mortem examinations are concerned. Would you

6 please respond to what has been said.

7 MR. RE: Yes. We have a proposal, a counter-proposal, ready to

8 send to the Defence -- you can't hear me? Sorry. We have a proposal, a

9 counter-proposal, ready to send to the Defence in relation to the agreed

10 facts. I am confident we should be able to reach some form of agreement

11 by tomorrow afternoon if we get it to them today. It will be in short

12 form.

13 The military one, my learned colleague, Mr. Emmerson, said the

14 15th of February. That doesn't quite accord with my recollection of when

15 we received them. We can agree to a number of them. I'm sorry. I don't

16 have the figure in front of me. It was there a moment ago and

17 Mr. Di Fazio took the list with him when he took the court. I thought it

18 was here. There are a percentage we can agree to. There are no agreement

19 on those. We will be in a position to forward to the Defence a proposal

20 tomorrow in relation to the military proposals which the Defence put

21 forward.

22 I would comment that some of them are things such as extracts from

23 the Prosecution's pre-trial brief in the Milutinovic case or extracts of

24 testimony by a witness, one witness or another, from other cases which

25 have, of course, to be seen in context, in counter-distinction to the

Page 303

1 Prosecution's proposals which came from trial judgements or documents.

2 So, in short, we'll have something back to the Defence by

3 tomorrow.

4 [Trial Chamber confers]

5 JUDGE ORIE: With the assistance of Judge Hoepfel, I am now

6 "Access Denied for User Orie, A.," so I have some problems -- even in the

7 favour of electronics, it does not always --

8 Yes. I think the wisest thing to do here is to wait for your

9 proposal. There's nothing on our table yet to rule upon. At the same

10 time, there's this song where you say three times, "Tomorrow, Tomorrow,

11 Tomorrow." There's another song about "Yesterday." The Chamber prefers

12 the second one.

13 Yes, access is not any more denied.

14 This completes 5, agreed facts, I would say.

15 6, the notification of a witness list, order of witnesses,

16 proofing records, provision of witnesses -- witness statements to the

17 Chamber. The Prosecution's witness list was filed as an annex to the

18 Prosecution pre-trial brief on the 29th of January, and since then there

19 have been changes to the list. I think we just received the most recent

20 witness list. I think I saw it this morning, Mr. Re; is that correct.

21 MR. RE: Well, yes. It's basically the same as the one we

22 e-mailed and sent to the Defence on the 7th of February.

23 JUDGE ORIE: It's two hours more than the previous one. It's

24 basically the same but --

25 MR. RE: Yes. We've also -- we've e-mailed it now. It's in a

Page 304

1 spreadsheet. We've sorted it two ways. We've sorted it according to the

2 order of testimony and the witness number. The one I handed round this

3 morning is sorted according to -- only according to tentative order of

4 testimony. I now have one which is sorted in order of witness number, the

5 original number, that may assist, if I hand copies of those around to the

6 Chamber and the Defence.

7 JUDGE ORIE: Yes, please do. With the assistance of the usher, I

8 take it that you could distribute it.

9 MR. RE: Yes. That's for the Chamber and that's for everyone

10 else.

11 There's one matter I would like to address in private session, if

12 I could, at the appropriate point.

13 JUDGE ORIE: Yes. If it falls within the scope of the present

14 item of the agenda, then we'll move into private session.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 305











11 Pages 305-309 redacted. Private session.















Page 310

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 THE REGISTRAR: Your Honours, we're back in open session.

22 JUDGE ORIE: Thank you, Madam Registrar.

23 Then let's see where we were on the agenda. Yes. We have now

24 received the newest witness list. The Chamber, of course, on the basis of

25 this new witness list, will have to decide what amount of hours will be

Page 311

1 granted to the Prosecution to present its case. We now have the relevant

2 information on which we could make a ruling on that, and we might -- we

3 might even do it today, but not -- of course, we first have to consider --

4 the changes are relatively small; therefore, our earlier deliberations

5 will assist us in reaching final decisions. But nevertheless we'll take

6 the next break to see if we can do that, yes or no.

7 Then, next point is that the Trial Chamber has received the

8 Prosecution's witness list for the first two weeks of trial, and we

9 received that on the 25th of February by e-mail. Are there any changes in

10 respect of this first two weeks' list?

11 MR. RE: The list which I handed out this morning reflects the

12 current proposed order of witnesses.


14 MR. RE: There are two lists; one which says the "Tentative Order

15 of Testimony," so there is one change from -- we notified that witness

16 number 17, we were hoping to call number 1, if we could. So he is at

17 number 17. That's the order of testimony.

18 JUDGE ORIE: Yes, that's an international witness. You want to

19 call him as a first witness.

20 MR. RE: No.


22 MR. RE: These are the current plans, as good as we can get them.

23 JUDGE ORIE: He was at number 1, wasn't he?

24 MR. RE: The original list, we said subject to his government's

25 approval. We've had to put him down the list by a couple of days.

Page 312

1 JUDGE ORIE: Therefore, the list which is now sorted in the

2 tentative order of testimony, that provides the information of the order

3 of calling your witnesses.

4 Any comments by any of the Defence teams? Yes.

5 Is there any, now having discussed the order, is there anything

6 else in relation to these first two weeks the parties of the Defence would

7 like to raise?

8 MR. EMMERSON: Your Honour, there is one matter or one cluster of

9 matters which I was going to raise under "Any Other Business," but since

10 Your Honour asked specifically in relation to the first witnesses, may I

11 invite your attention to witnesses 1 and 2 on the Prosecution's tentative

12 order of testimony. These witnesses -- and first is, as you see, a

13 witness with protective measures currently in place. These witnesses are

14 or were field workers for a non-governmental organisation based in

15 Belgrade, operating in Kosovo. There are three points I need briefly to

16 mention.

17 First of all, the question of disclosure of material. I mentioned

18 earlier that some six to 800 pages of material was disclosed for the first

19 time very late last night. That relates to a lengthy report published by

20 the organisation concerned of which hitherto only one page had been

21 disclosed, and English translations of a number of notebooks compiled by

22 the witness numbered 2 on the list. Those were all items that were on the

23 Prosecution's Rule 65 ter exhibit list.

24 Now, without having seen the material, it's obviously very

25 difficult for me to assess how much of it may, in fact, be relevant. When

Page 313

1 one looks at it, it may be very easy to hone in and identify a

2 comparatively small number of pages that really need to be assimilated

3 before cross-examination. So I make no submissions about the implications

4 of that as at this present moment in time. But I'm sure Your Honour can

5 see, given that we are three effective working days, including weekend

6 working days, before the start of trial, that that is a matter I will need

7 to review once we've had the opportunity to see what the material, in

8 fact, represents.

9 Secondly, in relation to both of those witnesses, it's right that

10 I should put on -- put Your Honours on notice, so to speak, of the fact

11 that there may well be issues concerning the admissibility of parts of the

12 evidence of these two witnesses. If I can just, in a sentence or two,

13 explain, because it has some procedural implications.

14 Their statements contain a mixture of a limited amount of direct

15 personal testimony of their own together with multiple hearsay, including

16 summaries, sometimes sourced, sometimes not, of interviews with witnesses,

17 some of whom are witnesses that the Prosecution is proposing to call in

18 support of particular counts in the indictment viva voce. In some

19 instances, they exhibit witness statements to their own statements, which

20 are either taken by themselves, more often by field workers or by, indeed,

21 the Serbian police, the MUP. Their own statements contain quite a

22 considerable amount of unsourced hearsay and rumour, as well as a certain

23 amount of opinion evidence. So they raise potentially complex questions

24 of admissibility.

25 I've discussed these issues with Mr. Re on a number of occasions,

Page 314

1 orally and in writing, and I have asked him now to identify precisely

2 which parts of their evidence he intends to elicit. We are, I think,

3 agreed that there is inadmissible and irrelevant material in their

4 statements, but the Prosecution has not yet indicated which parts of their

5 statements they do intend to rely on.

6 And I raise this now because it may, first of all, be necessary to

7 seek a ruling from the Trial Chamber on these witnesses, or parts of their

8 testimony, before they are called; but I raise it also because as Your

9 Honour, I think, will immediately see, the Defence are just not in a

10 position at the moment to formulate or prepare their arguments on the

11 admissibility of parts or all of the testimony the Prosecution proposes to

12 adduce because the Prosecution has not given the Defence an indication of

13 the testimony it does intend to adduce.

14 That is something which needs to be rectified as a matter of

15 urgency, because if opening speeches are to be made on Monday, it would be

16 necessary to move into legal argument, if there is to be any, on Tuesday.

17 JUDGE ORIE: Yes. May I perhaps try to cut matters short.

18 Mr. Re, I see that the witness list number 1 is scheduled for two

19 hours; witness 2 is scheduled for two hours as well. If it is true that

20 there are reports, only recently disclosed and relevant to the testimony

21 of these witnesses, reports by the organisation they -- and if these

22 reports are 800 pages, I take it that you do not imagine to go through all

23 of these 800 pages with these witnesses in the two hours available for

24 each of them. Is there any possibility for you to identify for the

25 Defence those portions of the report you would specifically rely on as a

Page 315

1 factual basis for the examination of -- or at least relevant for facts

2 you'd like to elicit from those --

3 MR. EMMERSON: Your Honour, before Mr. Re replies. It may be that

4 I didn't make my submissions quite as clearly as I should have done.


6 MR. EMMERSON: There were two separate problems. One is the

7 disclosure of material late last night. Like I say, I have no reason to

8 believe --

9 JUDGE ORIE: It's just that it's logical to report --

10 MR. EMMERSON: That consists of the translations of four

11 notebooks, which had previously been disclosed in Serbian, and the service

12 of a 300-page report, which had previously been the subject only of the

13 service of one page. Nobody at the moment knows how much, if any, of that

14 material is relevant. Where the problem arises is in the witness

15 statements themselves which, as I've indicated, contain this vast array of

16 material of varying quality and reliability and which raise a number of

17 potentially difficult issues of admissibility. And it's in respect of the

18 witness statements that I have been asking the Prosecution to identify

19 what it is they are proposing to adduce.

20 Moreover, and I'll deal with this very briefly, I understand that

21 Mr. Re had an interview or proofing session with the protected witness

22 SST7/28 yesterday and plans another one over this weekend, and that

23 Mr. Di Fazio has been dealing with proofing sessions with the second

24 witness, Ms. Andjelkovic. We're obviously coming on to the disclosure of

25 proofing notes as an issue on the agenda, but we would very much want to

Page 316

1 have the records of those sessions in sufficient time to be able to

2 assimilate what it is exactly the Prosecution wants to elicit from these

3 witnesses, in effect, paragraph by paragraph so we can formulate any

4 objections that there may be. And of course there may not be in the end.

5 At the moment we don't know what the Prosecution wants to elicit from

6 these witnesses in sufficient detail to assess or analyse our position.


8 MR. RE: Both witnesses, in our submission, give accounts of what

9 they observed and what they saw in Kosovo in 1998. These statements refer

10 to matters outside the indictment period. Rest assured, of course the

11 Prosecution is not going to elicit irrelevant evidence from these

12 statements --

13 JUDGE ORIE: Mr. Re, just to keep matters short. I think

14 Mr. Emmerson was not soliciting that you explain to the Chamber what you

15 want to elicit from these witnesses but to the Defence. Of course, it's

16 fine if you -- but what they are seeking is your assistance such that they

17 know what to focus on in preparing for cross-examination. I think that's

18 the issue, if I've understood you.

19 MR. EMMERSON: Well, Your Honour, it is, a statement from the

20 Prosecution of the evidence they intend to elicit in sufficient

21 particularity to enable the Defence, A, to formulate objections to

22 admissibility, because much of the material, on its face, is amenable to

23 such objections and, B, of course, to prepare cross-examination. But at

24 the moment -- and if Your Honours read the statements, you would see

25 immediately that you have to pick through pages of material to find

Page 317

1 anything which, on its face, is admissible probative relevant first-hand

2 testimony. The vast bulk of it is third-hand reports of what somebody

3 else told somebody else when very often, in certain instances at least,

4 the ultimate source of information isn't even identified.

5 JUDGE ORIE: You say "even," where he'd say this is not prohibited

6 in this Tribunal, that here are strong reasons to argue this. This would

7 be inadmissible --

8 MR. EMMERSON: I'm not arguing for an absolute ruling.

9 JUDGE ORIE: No, no, of course, not. I couldn't give it at this

10 moment; the Chamber could not give it at this moment.

11 Mr. Re, well, of course, usually in order to know better what

12 would be the focus of examination of a witness, of course, would be to

13 look at the 65 ter summary because there you outline -- you do not perhaps

14 necessarily repeat all of what is in the statement but what you want to

15 elicit. Do I understand that the 65 ter summary does not give you

16 sufficient guidance for --

17 MR. EMMERSON: It is virtually of no use whatsoever for the

18 purposes that I've outlined. The first 65 ter summary, that is of the

19 second witness, contains material which simply refers, in very general

20 terms but not in specific terms, to the categories involved, and the

21 second one contains a much more detailed summary, obviously prepared by

22 someone else, which includes all of the material Mr. Re referred to

23 outside the indictment period.

24 What I have done is I have written to Mr. Re and I have divided

25 the witness statements collectively into seven different categories:

Page 318

1 Direct testimony, summaries of the statement of a witness who is to be

2 called by the Prosecution, and so forth. And I have asked him to indicate

3 which of those seven categories, in principle, he proposes to seek to

4 elicit so that the legal position can be clarified; and then to identify

5 which paragraphs of the statements he proposes to adduce. It's, I hope, a

6 reasonable and, frankly, one without which we simply cannot formulate our

7 position.

8 I'm not asking for further time at the moment, but I am asking the

9 Prosecution to state its position. It's chosen to call as its first two

10 witnesses, witnesses whose statements raise extremely difficult questions

11 of admissibility and reliability.

12 JUDGE ORIE: Mr. Re, do you think that you could answer the

13 request or reply to the request of Mr. Emmerson in such a way that he

14 would be happy over the weekend, or at least on Monday, or do you think

15 it's a matter which needs more attention at this moment?

16 MR. RE: Well, I can't answer whether I can make Mr. Emmerson

17 happy. We had this conversation yesterday over the phone. That's why

18 when I started responding, Mr. Emmerson was rehearsing what he said

19 yesterday and I was about to respond how I responded yesterday. I don't

20 think we really need to trouble the Trial Chamber with inter partes

21 conversations unless we get to the point where we can't resolve it. I

22 have his letter. I am speaking to the witness. I spoke to her briefly

23 yesterday, and I will be speaking to her on Sunday. The Defence is aware

24 of that. When I have the results of that, I will produce it to him. We

25 could not speak to her earlier for various logistical reasons for her and

Page 319

1 for us. Unfortunately, for the first week, that's just the way it is.

2 JUDGE ORIE: I also understand from Mr. Emmerson that you had

3 already some proofing sessions with at least one of these two witnesses.

4 Is the results of those proofing sessions, are they already such that they

5 could be made available, if at all, you want to make available to the

6 Defence the reports of the proofing sessions. That's an outstanding

7 matter. I remember there was some conversation about what the Defence, in

8 the perfect world, not in the imperfect world, nevertheless, would like to

9 have; that is, I remember 72 hours. I don't remember that it was ever a

10 clear response of that from the Prosecution. But just now, the first

11 proofing session, is that material available to the Defence?

12 MR. RE: I think proofing is a rather grand way of describing a

13 telephone conversation I had for half an hour with the witness yesterday.

14 I'm actually -- I'll actually be speaking to her in person in The Hague on

15 Sunday.

16 JUDGE ORIE: Okay.

17 MR. RE: I have started it. Her evidence, she will be referring

18 to reports and her own observations. They're in her statement.


20 MR. RE: What I need to obtain from her, and started yesterday,

21 was the source of her observations. She has told me that they are her own

22 observations and those recorded in the reports. And it's general

23 background information setting the pattern, setting the scene, for what

24 happened in Kosovo. Yes, some of it is hearsay -- well, most of it is

25 hearsay, but that's the nature of the introduction to these sorts of

Page 320

1 cases.


3 MR. RE: And the second one, witness number 2, Mr. Di Fazio is

4 proofing her by videolink this afternoon, so I hope Mr. Di Fazio will be

5 able to provide something to the Defence later today about what the second

6 witness has said to them -- said to him.

7 MR. GUY-SMITH: Do I understand, then, that later today we will

8 receive a copy of the videolink of the proofing session?

9 JUDGE ORIE: I don't know whether it has been recorded, but ...

10 MR. GUY-SMITH: I think it raises -- there were two questions with

11 regard to the issue of proofing which we seem to be fast approaching. One

12 was when would we be receiving --


14 MR. GUY-SMITH: -- the proofing and how it would be memorialised.

15 JUDGE ORIE: Yes. Let's first try to deal with the matter of the

16 first two witnesses without, at this moment, entering into a kind of

17 general debate on how we would have to deal with proofing sessions and

18 when the results should be disclosed and how they should be recorded, et

19 cetera, et cetera.

20 The first question, quite simply, is: I do understand that until

21 now the proofing session was limited to a telephone conversation of half

22 an hour, and that further communication with this witness will take place

23 this afternoon and Sunday. Are we -- is the Defence in a position to say,

24 no, even if it was only half an hour, we have to be fully informed; or

25 that you would say, well, this half an hour, let's wait and see what the

Page 321

1 more -- the larger proofing sessions or conversations will bring us; let

2 us be informed about that and then let's see what needs we have?

3 MR. EMMERSON: Your Honour, before I answer that question

4 directly, I'm anxious, and I'm sure it's my fault, that we're aligning two

5 different issues. One is the disclosure of records of proofing sessions,

6 to which I'll return in a moment. The first is clarification of which

7 aspects of the statements the Prosecution contends are admissible and

8 should be admitted.

9 Mr. Re says I communicated to him in writing yesterday. I'm sure

10 he will agree that when we spoke on the 15th of February, as I indicated

11 in my correspondence, I made a request for the clarification that I am now

12 seeking. What I need in that respect is, as I have indicated, and it's

13 quite separate from the proofing sessions.

14 As regard the proofing sessions, Mr. Re has written to

15 Mr. Guy-Smith to indicate that the Prosecution will, in general, seek to

16 proof witnesses some considerable time before they are due to be called,

17 and that records of those sessions will be disclosed as soon as they are

18 available. That is the position of the Prosecution. So to that extent,

19 that much at least is clear.

20 As far as timing is concerned, it rather depends on what passed

21 between Mr. Re and the witness during the half an hour that he spoke to

22 her. If there was nothing more than general introductions and some

23 parameters mapped out, then perhaps it wouldn't be of any value to the

24 Defence to have it now. If, on the other hand, matters of substance were

25 discussed, then perhaps the Defence ought to have it now. The real point

Page 322

1 is that as matters currently stand, Mr. Re will be proofing this witness

2 on Sunday, presumably reducing that to writing, at best, on Sunday

3 evening, serving it on Monday during the course of opening submissions,

4 and calling the witness on Tuesday.

5 JUDGE ORIE: Which is a short period of time.

6 MR. EMMERSON: Well, against the background of admissibility

7 issues that need to be raised and considered, it's an extremely short

8 period of time, because it may well be the results of the proofing session

9 will directly impact on whether the admissibility argument needs to be put

10 forward and the form in which they take.

11 JUDGE ORIE: At the same time, I do understand Mr. Re to say, "We

12 are inquiring into sources of knowledge," et cetera, et cetera, which

13 suggests that at least it's not personal observation of events to take

14 place. And you say, "Well, if we -- until now we have no knowledge, we

15 have no information, about the sources; therefore, we cannot formulate any

16 admissibility argument." At the same time, I also see that, whether we

17 like it or not, that Mr. Re might not be in a position to come to you if

18 he has not spoken to the witness.

19 MR. EMMERSON: Yes. Can I just give Your Honour a practical

20 example.


22 MR. EMMERSON: One of these witnesses appends a collection of

23 witness statements of other individuals to her witness statement, which

24 includes statements made to the Serbian police, the MUP. One of those

25 statements, certainly one of them, is a statement from a witness who is

Page 323

1 going to be called in these proceedings. Now, I understand from Mr. Re,

2 because he has told me this in terms, that the Prosecution is not

3 proposing to seek through these witnesses, so to speak, to introduce

4 hearsay statements made by other witnesses that are appended to the

5 witness statements of the two principal witnesses. So far, if I may say

6 so, so good.

7 But the actual content of the witness statements is itself a

8 patchwork of summaries of either those statements or other statements not

9 recorded or, in some instances, information provided through one step

10 removed. Sometimes the source is recorded; sometimes it isn't. And with

11 the greatest of respect, it does not take a proofing session for the

12 Prosecution to apply some intellectual legal discipline to that statement

13 and identify which parts of it, it says, can properly be adduced,

14 paragraph by paragraph. And once that is done, the Defence can formulate

15 its response.

16 At the moment, I'm happy to do it on the basis that the

17 Prosecution wants all these witness statements and their annexes adduced,

18 but I know that isn't the position. And I don't want to waste the Trial

19 Chamber's time or, indeed, the limited Defence preparation time in

20 formulating arguments that, in due course, are going to prove to be

21 unnecessary.

22 JUDGE ORIE: If I understand you well, you'd like to receive a

23 copy saying this, this, this, this, that's what we'll focus on to start

24 with; forget about the rest. That's one. And second is, if there's any

25 hearsay without an identifiable source, that you'd like to receive

Page 324

1 information about the source as soon as it's available to Mr. Re.

2 MR. EMMERSON: And, Your Honours, as I've indicated, we've divided

3 the material in those statements into seven categories of principle, and I

4 would like Mr. Re to indicate, as amongst those categories, which

5 categories he contends ought properly to be admitted. I know that one of

6 them he doesn't .


8 Mr. Re, I must repeat my words about making someone happy, but

9 could you focus on the request made by Mr. Emmerson, focusing also on the

10 identification of the parts you're already focusing on, and focusing on

11 the additional information about the source of hearsay evidence? Could

12 you -- do you think you could respond to that even without perhaps making

13 Mr. Emmerson happy? I mean, do you say it's an useless exercise. Either

14 choose them all, which doesn't help, or -- I mean, is this a failing

15 communication or is it still worth the endeavour to see whether you could

16 resolve this?

17 MR. RE: It's a two-step process. Step one is what are we not

18 relying upon. It's self-evident, I've told Mr. Emmerson. We're not

19 relying upon anything which is outside the indictment period, any

20 observations in the -- past September 1998. And the witness statements

21 have got those, out. Witness statements appended, out. Step two is

22 finding the source of all the information. I have started those

23 inquiries. The witness has referred me to the reports. I'm trying to

24 find them.

25 JUDGE ORIE: As soon as you have solid information, you'll share

Page 325

1 that with Mr. Emmerson, in terms of sources.

2 MR. RE: Yes. That is what I'm doing. I am communicating with

3 the witness. I have sent an e-mail to the witness asking to list some

4 sources.

5 JUDGE ORIE: You've told Mr. Emmerson that certain portions you

6 will not rely on because they are outside the temporal scope of the --

7 which, of course, does not necessarily give an answer to what you focus on

8 or what is still within the temporal scope of the indictment. Everything?

9 MR. RE: It's a witness who interviewed people in Kosovo as to

10 what had happened to them or what they had seen and was there herself.

11 And she has a colleague who gives similar evidence. It is the same as in

12 any other case where human rights or -- sort of workers go into the field

13 and make their observations through a mixture of interviews with refugees,

14 people who live in villages, newspaper articles, and give their

15 observations and their opinion as to the pattern.

16 It's the usual, if I could put it in those terms, evidence of the

17 widespread or systematic nature of an attack based upon their own personal

18 observations and what they heard and saw. At the end of the day, it's a

19 matter of weight for the Trial Chamber.

20 JUDGE ORIE: But you say it's rather broad. You also say, "I'll

21 not rely on any information outside the temporal scope of the indictment."

22 And did I also understand that you will not rely on any hearsay statements

23 where the witnesses appear on the witness list to appear here, or is that

24 untrue.

25 MR. RE: In general, if a witness is on the list but has spoken to

Page 326

1 witness number 1, we will be submitting we would be permitted to lead

2 evidence of the fact that they'd spoken, the general nature.

3 What Mr. Emmerson was referring to, and what I told him we would

4 not be reducing, is any contemporaneous statements witness number 1 took

5 from witnesses on our witness lists. Those witnesses are here to give

6 that evidence themselves, and it is of no value -- probative value to the

7 Trial Chamber, unless it's a better record and it may assist -- the later

8 witnesses' recollection. I don't propose to tender into evidence --

9 JUDGE ORIE: Or undermine the later testimony of said witness.

10 MR. RE: That's up to him.


12 MR. EMMERSON: Just listening to that response, with the greatest

13 of respect, illustrates the difficulties. On his feet, Mr. Re has just

14 told Your Honours that he will not be seeking to introduce the written

15 witness statement by X, who is going to be called to testify, but he does

16 wish the witness to be able to give oral testimony of a summary of what

17 the witness told her. So, in effect, he's adopting two contradictory

18 positions in respect to the same piece of evidence, because the summary

19 and the witness statement is drawn from the statement which is attached to

20 the witness statement. And that is, if I may say so, a pristine

21 illustration of the problems that we are facing in formulating a response

22 to that.

23 I don't want to be seen as though I am being nitpicking or being

24 difficult. I am quite certain that were Your Honours to read these

25 statements, you would immediately see the problem. It is not sufficient

Page 327

1 to simply say, "These are human rights workers and they are here to give

2 general background." They are not tendered as expert witnesses giving

3 evidence opinion; they are not apparently tendered to give hearsay

4 statements, and yet in some effects they are. And cumulative effective

5 statements, which may or may not be sourced, is then said to be the basis

6 for an impressionistic opinion. Obviously, those are matters which can,

7 some of them, properly go to weight at the end of the day.

8 But the borderline of what goes to weight and what goes to proper

9 admissibility is one which was explored, for example, by Judge Bonomy in

10 the Milutinovic case in respect to material much better assembled and in a

11 much disciplined and organisational fashion in a human rights report which

12 was ultimately ruled inadmissible. In order to properly apply the

13 Tribunal's jurisprudence, we have to know what the Prosecution wants to

14 adduce.

15 [Trial Chamber confers]

16 JUDGE ORIE: I don't think it's of great use to continue this.

17 The Chamber encourages the parties to meet on these matters, even if both

18 parties are aware that they could not immediately resolve the matters, but

19 to see whether a solution-oriented attitude could overcome the deadlock

20 that seems not to be unrelated to a rather antagonistic approach at this

21 time. I'm not blaming anyone for antagonistic approaches, but the Chamber

22 would encourage you to see whether any progress could be made in this

23 matter; and then, of course, we can't deal with the matter in any other

24 way at this moment, not being fully performed. Then, of course, we'll see

25 what happens and we'll see what rulings are required to be made next week.

Page 328

1 Yes. These are for the two witnesses. Now we have the other

2 matter still remaining which is the memorandum of the 5th of February.

3 Perhaps also we could not reach a final decision on whether proofing

4 sessions should be -- well, there's, I take it, some agreement on

5 disclosure of the results of proofing sessions, whether it be 72 hours or

6 48, or - what often happens in this Tribunal - 24 hours, we have from what

7 I remember not a consolidated response to the suggestions made - at least,

8 it has not been addressed to the Chamber - to the suggestions made to the

9 Prosecution by the Defence. Wouldn't it be a wise first step to give a

10 consolidated effort and say this is what you want, this is what we could

11 consider what we could offer, and then we'll finally see where we end up.

12 But such a consolidated response is not there yet, from what I understand.

13 Mr. Re.

14 MR. RE: Not quite. The first week of -- the first week of

15 witnesses has presented some logistical details -- difficulties. We are

16 endeavouring at the moment, starting today, to proof witnesses in the week

17 following and the week after. So --

18 JUDGE ORIE: I'm not --

19 MR. RE: -- there's some difficulty with the first few.

20 JUDGE ORIE: No, I'm not blaming you, but we could accept this to

21 be a pending matter for the next three or four months, and then of course

22 we're already past the presentation of the Prosecution case so there's no

23 need to resolve it anymore; or we could give it some priority to see what

24 the position of the Prosecution is, the Defence has clarified its position

25 in this respect, and see if we can create a kind of working system in

Page 329

1 which we don't have to argue the matter witness by witness but on a more

2 general basis.

3 Therefore, you're invited to provide a consolidated response to

4 the proposals made in the 5th of February memo. I think it was that the

5 Prosecution should provide the Trial Chamber the prior statements, who is

6 to be called to testify viva voce, three clear working days before the

7 witness is called. The Prosecution should provide to the Defence a record

8 of any proofing sessions as early as possible, but at least five clear

9 working days before the witness is expected to testify, and that is at

10 least 48 hours before providing the statements of any such witness to the

11 Trial Chamber.

12 I mean, these are clear proposals. Whether you agree with them or

13 not, let's see to what extent you could work out a solution; and if you

14 don't find a solution, then of course the Chamber will.

15 MR. RE: Your Honour, I can say this: If it assists, witness

16 number 1, Sunday, proofing; witness number 2, today; witness number 3,

17 Sunday; witness number 4, probably no proofing, trying to get travel

18 documents. Of course she was only interviewed last month anyway. There

19 won't be anything to add. Witness number 5, we're proofing him today by

20 videolink; 6 and 7, don't know yet; 8, sometime next week. So we are in

21 the process of doing it.

22 JUDGE ORIE: I understand that's the timing, Mr. Re, but several

23 issues have been raised; that is, when do we receive records of proofing

24 sessions? Is the Prosecution in the position to give the statements to

25 the Chamber, and at what moment? And should the Prosecution wait until it

Page 330

1 has given an opportunity to the Defence to comment on the proofing

2 sessions and whether it's admissible or not, to send it to the Chamber?

3 It's not just when will the witness be proofed, but it's also a

4 matter of creating a system in which the parties know - and, of course,

5 exceptions will always be there - but that we have at least a kind of

6 schedule, a system, under which we operate. That's the issue. The

7 proposals are there. Now the Defence is on notice of when the proofing of

8 the first five or six witnesses will take place. But now it's elaborating

9 a system in relation to the issues raised by the Defence.

10 MR. RE: There's an issue which, of course, would require an

11 immediate, maybe, decision by the Trial Chamber and that is in relation to

12 the furnishing of proofing notes.

13 Now, clearly we give them to the Defence as soon as we -- as soon

14 as we have them. The issue -- I mean, the Prosecution doesn't mind giving

15 them to the Trial Chamber. The Defence may, of course, have their own

16 opinion on whether we should provide them to the Trial Chamber. And that

17 will start occurring today; that is, we will have proofing notes from

18 today. So we are in the Trial Chamber's hands in relation to whether we

19 provide them to you. We don't take -- we don't take a view. In relation

20 to the statements, we don't take a view either on providing the

21 statements. If the Trial Chamber wants the statements of the witnesses,

22 we will, of course, provide them to you, according to whatever timetable

23 you impose.

24 JUDGE ORIE: Yes. Just as an urgent solution, and irrespective of

25 what we do later, we are now preparing for the next witness. If you

Page 331

1 receive proofing notes, let's say, by tomorrow, the first -- during the

2 weekend, there ...

3 [Trial Chamber confers]

4 JUDGE ORIE: The Chamber would not be unhappy if it would receive

5 whatever it said it would like to receive; that is, statements and

6 proofing notes, to the extent that it comes to a kind of new statement -

7 that's usually corrections to the original statements - by Monday, 12.00.

8 This would give you an opportunity to at least have a couple of hours to

9 say, "No, this should be barred from going to the Chamber because it is

10 signed by the Queen of England rather than by the witness."

11 MR. EMMERSON: Your Honour, as a matter of principle, first of

12 all, it seems to us that proofing notes are in the same category as

13 witness statements; they are just, in effect, either a further statement

14 either taken in full form or note form.

15 JUDGE ORIE: It depends on how they are drafted.

16 MR. EMMERSON: So as far as that slots into the template that we

17 have suggested - and may I make it clear we never intended to suggest that

18 that should be a template written in iron but a guideline - I mean,

19 insofar as it would slot into the template, it would slot into the

20 template at the time that the statements were generally provided to the

21 Trial Chamber. Now, I appreciate that we're dealing with the truncated

22 timetable perforce in the present circumstances, and one of the concerns

23 the Defence has had, which Your Honour has rightly identified, is that

24 what has happened over the last few days with very little service of

25 material and then at late proofing material, it doesn't become ossified

Page 332

1 into a practice in the trial.

2 As far as the first two witnesses are concerned, in one sense, I

3 would -- those are examples of statements which I would, in general, be

4 disposed to invite the Trial Chamber not to be looking at because of the

5 vast amount of inadmissible and irrelevant material.

6 JUDGE ORIE: At the same time, this Trial Chamber will have to

7 decide admissibility; therefore, if you're thinking in terms of a jury

8 system, it doesn't help. We have to look at it anyway, so that is not a

9 reason to put --

10 MR. EMMERSON: That was going to be my next sentence. In a sense,

11 those are -- the points I've been making so far really will only become

12 crystal clear, I think, to the Trial Chamber when they actually see the

13 witness statements.


15 MR. EMMERSON: In short, I'm happy with the proposal of 12 noon on

16 Monday.

17 JUDGE ORIE: Yes, okay. And then you would emphasise that the

18 Chamber might have to look at it primarily from a point of view of

19 admissibility of that same material.

20 Okay. That --

21 MR. RE: Can I clarify, is 12 noon the statements or the proofing

22 notes?

23 JUDGE ORIE: Whatever you -- proofing notes, and there seems to

24 be -- I don't know whether there's any disagreement. Proofing notes,

25 taking the form of additions to the statements themselves. I mean, a

Page 333

1 proofing note could be, "We went through the whole of the statement of the

2 witness and the witness said exactly the same as he said at that time."

3 Then I would say the proofing note would be no changes whatsoever in the

4 memory of the witness.

5 It could also be that the witness says, "What I said was all lies

6 because someone said I had to lie on this and this matters." Okay, then

7 the proofing note will be rather short and then perhaps followed by some

8 new information. It could also be that the witness says, "Everything's

9 fine, but in that statement on that date, line 14, I mixed up Mr. A and

10 Mr. B." Then, of course, it would take the form, more or less, of an

11 additional statement which would be informative to know.

12 MR. RE: Proofing notes I understand, but the order for 12.00

13 Monday, does that also refer to the witnesses' statements as opposed to

14 the proofing notes? When does the Trial Chamber want the statements?

15 JUDGE ORIE: I think, as a matter of fact, that the position of

16 the Defence is that to provide these statements to the Chamber, and the

17 admissibility of that, knowing that finally we'll see them anyhow, but

18 whether or not they should be sent primarily for the purposes of argument

19 on admissibility or just for our information to be prepared for the

20 examination, that that may depend on what happens during the proofing

21 sessions. That's what I understand.

22 MR. EMMERSON: Your Honour, yes, as a general proposition. So far

23 as these first two witnesses are concerned, the only reason I would

24 suggest that we wait until Monday, 12 noon, for you to see the witness

25 statements is because you have suggested that the parties should meet in

Page 334

1 an attempt to get some clarity about what exactly it is that the

2 Prosecution seeks to elicit. Once that is done -- if, in fact, the

3 statements that we have at the moment are largely redundant, and there are

4 three or four or five or six paragraphs in them that the Prosecution

5 really intends to adduce, then the matter can be dealt with in that way,

6 perhaps with a fresh proofing note. But as a general proposition, I would

7 have thought statements and proofing notes at the same time to the Trial

8 Chamber.

9 JUDGE ORIE: Okay. Then the size of the statements for the first

10 two witnesses until now is approximately how many pages? I'm talking

11 about statements, not about ...

12 MR. EMMERSON: Well, Your Honour, if you include the annexes,

13 which are the statements that they exhibit from other people --


15 MR. EMMERSON: -- I suppose about -- a total of about 60 pages, is

16 a guess. Maybe a bit more. A bit longer than that.

17 [Trial Chamber confers]

18 MR. EMMERSON: 187 -- 87 in total. That's for one witness.

19 JUDGE ORIE: Monday, 12.00, for both statements and proofing notes

20 is fine.

21 Then, having dealt with this matter and expecting the Prosecution

22 to respond in a more general way to the whole issue of when and what to

23 produce, what to disclose at what moment, we have dealt with the matter

24 for the first two witnesses.

25 Then I would like to move on to the next item, and that is the

Page 335

1 approach to cross-examination.

2 I think the Defence has suggested, I remember that, where the

3 Chamber may have had 60 per cent in mind, 60 per cent of the time taken by

4 examination-in-chief. But since this is a multiple-accused case, that for

5 the Defence as a whole, they would prefer 80 to 100 per cent. The Chamber

6 will follow that suggestion for the time being. Ninety is exactly in

7 between 80 and 100, so that would be 90 per cent. The Chamber will be

8 flexible in its approach on the condition that cross-examining counsel

9 proceed in an efficient and helpful manner. Of course, how we will

10 develop this standard very much depends on what we see and what we hear.

11 At the same time, the Chamber would also like to thank you,

12 Mr. Emmerson, as counsel for Mr. Haradinaj, for giving notice of witnesses

13 for whom you expect to need a greater-than-average amount of time in

14 cross-examination, as you gave to us on the 5th of February. That's

15 highly appreciated.

16 Any other matter in this respect, in cross-examination? Looking

17 to you, Mr. Harvey, to you, Mr. Guy-Smith.

18 That means that we have dealt with item 7 on the agenda.

19 Item 8 is on the agenda since it has been requested by the

20 Haradinaj Defence; that is, procedure for tendering exhibits. We had

21 training again on e-court; I don't know whether you had that as well and

22 whether that -- whether there are any remaining issues.

23 Microphone, please.

24 MR. EMMERSON: I think it may be that unless anybody has a

25 particular issue to raise in that regard, that is not an issue that we

Page 336

1 need take time with at the moment.

2 JUDGE ORIE: Yes. The Chamber informs the parties that as far as

3 technicalities are concerned, that we're struggling a bit with the status

4 of documents once they have been presented to a witness, because we do

5 understand that there are three, I would say, regular statuses; the one

6 being marked for identification, that is, awaiting admission; the second

7 is admitted and then it becomes an exhibit; and the third, tendered, not

8 admitted. So that's also after the decision. Now, we do understand that

9 there's a fourth category, that is, shown to a witness but without yet the

10 express intent to tender that document as a -- to be admitted into

11 evidence. The Chamber wonders whether that's not too complex for us and

12 whether we should not, whenever a document is presented to a witness, that

13 it gets the status of marked for identification.

14 So unless there is a clear indication that counsel who is

15 presenting that document to the witness has himself serious doubts as to

16 whether or not he will tender that document into evidence -- it sometimes

17 happens that there's one document floating around all the time, presented

18 to every witness: "Do you recognise this document?" "No, I don't

19 recognise that document" and then that's all. But, in principle, unless

20 we have a clear indication of the opposite, the Chamber will assume that

21 once a document is presented to a witness, that it's likely that it will

22 be tendered into evidence.

23 Another matter that we have considered is the matter of what to do

24 with documents that are presented to witnesses, and if one of the parties

25 claims that it should not be admitted into evidence, what the status of

Page 337

1 that document would be. There seems to be some concern, and the Chamber,

2 in its training sessions, has also expressed concerns that it would still

3 be on the record somewhere, where the Chamber itself decided that it would

4 not look at it anymore because it is inadmissible evidence.

5 The Chamber has understood that once we decide that a document,

6 first marked for identification and then not admitted but for reasons the

7 parties consider important for the Chamber not to look at it anymore ever

8 in their lives, then you could withdraw the release of the document, which

9 would result in a situation that it is on the record that a document which

10 received a number, so an identifiable document, has been tendered, that

11 admission was not granted, and that that's all on the record. The only

12 thing we can't do anymore is to --

13 MR. EMMERSON: Take it away.

14 JUDGE ORIE: Yes, you can take it away. You can take it away by

15 withdrawing the release, because a release of the document is a condition

16 for handling it at all in court.


18 JUDGE ORIE: And then finally, everything that would remain is

19 what happened with that document, but we have no access to the document

20 anymore.

21 MR. EMMERSON: I think providing the field which contained the

22 document at the time it was marked for admission and given an exhibit

23 number remains --

24 JUDGE ORIE: That all remains. But if you want then to link to

25 the document, you can't do it.

Page 338

1 MR. EMMERSON: You can't do it. It's only if the field were

2 removed that there would be a numbering crisis consequently with the

3 exhibit numbering.

4 JUDGE ORIE: Yes. That's what the Chamber would like to convey to

5 you, that we considered these matters.

6 Is there anything else on the procedure of tendering exhibits?

7 Not?

8 Then we move on to item 9 of the agenda. We have understood that

9 on Monday, the Prosecution will make an opening statement, and that the

10 same is true for counsel for Mr. Haradinaj. We also understood, although

11 we're not certain about the position of the Brahimaj Defence, that the

12 other counsel will not make opening statements and that none of the

13 accused will make a statement next Monday. Is that correctly understood?

14 MR. EMMERSON: Your Honour, certainly, so far as I'm concerned, it

15 is correctly understood.


17 Mr. Guy-Smith.

18 MR. GUY-SMITH: That is correct. We will not be making an opening

19 statement on whatever day it is after, and we reserve the right to make an

20 opening statement at a later point in time if necessary.

21 JUDGE ORIE: At the beginning of the Defence case.

22 MR. GUY-SMITH: If need be.

23 JUDGE ORIE: Yes, I said, if it ever comes to that.

24 Mr. Harvey.

25 MR. HARVEY: Yes, I apologise for any confusion that may have

Page 339

1 resulted from an e-mail that I sent the other day to the Trial Chamber.

2 It's merely that having spent last week together with my co-counsel. And

3 may I pause and insert a parenthesis to introduce my co-counsel, Mr. Paul

4 Troop, who was not able to be here earlier this morning but caught the

5 first flight available. We welcome him to our team.

6 JUDGE ORIE: Welcome, Mr. Troop.

7 MR. HARVEY: Close parenthesis. I would like to say that I would

8 like an opportunity, as both Mr. Troop and I were in Kosovo last week, to

9 have a final word with our client before closing the door. But I don't

10 anticipate making an opening statement, and I will, of course, reserve my

11 right to make a statement at the conclusion of the Prosecution's case.

12 JUDGE ORIE: Yes. Yes. Under the rule, the statement, and

13 disclosure of the Prosecution case, under rule -- I think the rule, as far

14 as opening statements are concerned, that it leaves you the choice to make

15 an opening statement at the beginning of the case or at the beginning of

16 the presentation of the Defence case, which of course gives you an

17 opportunity to file a 98 bis motion for an immediate acquittal.

18 MR. HARVEY: Yes, indeed.

19 JUDGE ORIE: But that would be in writing and would not be an oral

20 statement.

21 MR. HARVEY: I should have said at the opening of the Defence case

22 and not at the closing of the Prosecution case.

23 JUDGE ORIE: Yes. Well, if you say that it is the same, the

24 closure of the Prosecution case and the opening of the Defence case.

25 MR. HARVEY: Should it be necessary, the opening of the Defence

Page 340

1 case.

2 JUDGE ORIE: Yes, that is clear. The Chamber in the present

3 position expects the Prosecution to finish its presentation of its opening

4 statement within two sessions. If we have three sessions in the morning,

5 each of them a little bit less than one hour and a half, that stays within

6 the time I think you claimed you need; and for Mr. Haradinaj's counsel, to

7 finish your presentation in accordance with what you suggested, within one

8 session, that would give you approximately one and a half hours.

9 MR. EMMERSON: Yes. At the moment --

10 JUDGE ORIE: Microphone, please.

11 MR. EMMERSON: At the moment the timing stands between one hour 15

12 and one hour 30, but I'm working to abbreviate it further.

13 JUDGE ORIE: Yes, so within one session; and then the Prosecution

14 will be in a position to call its first witness on Tuesday, the 6th of

15 March.

16 MR. RE: Yes. That, of course, is subject to anything the Defence

17 says about disclosure of information --

18 JUDGE ORIE: Yes, yes, of course.

19 MR. RE: -- on Sunday, and we wouldn't object if the Defence were

20 to say that we need an extra day or two to deal with it. We understand

21 completely in those circumstances that these things might occur.

22 You said a moment ago, Your Honour, two sessions. Is that -- the

23 timing --

24 JUDGE ORIE: That's approximately three hours. On a day, we have

25 from 9 to -- well, let's say, we have -- a morning session will take us

Page 341

1 from 9 to a quarter to 2.

2 MR. RE: Yes.

3 JUDGE ORIE: We take off two breaks, usually some 50 minutes, so a

4 break on average to be 25 minutes. That's, therefore, a little bit over

5 four hours. That makes three portions each, almost, one and a half hours.

6 Yes?

7 MR. RE: Yes. Can I also just inform the Trial Chamber and the

8 Defence that the Prosecutor herself, Madam Carla Del Ponte, wishes to

9 commence the opening with a brief opening of maybe ten to 15 minutes, and

10 then I will continue more specifically.

11 JUDGE ORIE: The Chamber leaves this to the parties who will act

12 as counsel, and I think Madam Del Ponte is qualified to act as counsel on

13 behalf of the Prosecution, isn't she?

14 MR. GUY-SMITH: If I may, because of what I understood Mr. Re to

15 have said, if Madam Del Ponte is intending on making an opening statement

16 and discussing, and appropriately, what an opening statement is confined

17 to, that is fine. If she intends on doing something else, that raises an

18 entirely different issue. This matter was actually, I believe, addressed

19 in another proceeding at the Tribunal where the same attempt was made by

20 the Prosecution's office, and specifically by Madam Del Ponte, and there

21 was a concern voiced at that time that it was a political speech that was

22 to be made as opposed to a statement with regard to the facts at hand. I

23 raise this concern, only because I know that this is something which has

24 happened before in the relatively recent past here.

25 JUDGE ORIE: Yes. I do not have exactly in mind what you're

Page 342

1 alluding to, perhaps I not...

2 [Trial Chamber confers]

3 JUDGE ORIE: Now I'm informed about what seemed to have happened

4 in the Popovic et al case, if that's --

5 MR. GUY-SMITH: That's correct, Your Honour, yes.

6 JUDGE ORIE: Well, this Chamber is aware that the Prosecutor in

7 this Tribunal has several functions; of course, the primary function, to

8 prosecute cases before this Tribunal. But it is understood that that

9 needs context not focussing on what happens in the courtroom, and one

10 could not deny that in context a political aspect will now and then

11 element appear, if only because the Prosecutor is dealing with politicians

12 now and then.

13 I think it goes without saying, and I would not expect anything

14 else, that Madam Del Ponte would clearly distinguish between what an

15 opening statement means; that is, to give an overall impression to the

16 Chamber and to the Defence of what the Prosecution intends to prove, the

17 means by which it will prove it, perhaps to deal with legal issues, et

18 cetera, and not to be a statement primarily of a political nature, mainly

19 addressing the outside world, and if it would lose its character of being

20 of assistance to the Chamber.

21 On the other hand, Mr. Guy-Smith, we are old enough to know that

22 these kinds of cases involving accused, sometimes with a political

23 background as well, these kinds of cases in which we find often a mixture

24 of individual behaviour but sometimes linked to political aspirations -

25 I'm not saying in this case - but to draw the line between pointing at and

Page 343

1 addressing political elements involved in the case and political

2 statements is not always that easy to draw exactly where that line is.

3 But, of course, this Chamber could not expect anything else from the

4 Prosecutor before this Tribunal to wisely find that line for herself.

5 MR. GUY-SMITH: I appreciate your remarks, Your Honour, and I

6 think my suggestion may be a bit bolder than the Chamber is inclined to

7 follow because of what I would take from your remarks to be, if nothing

8 else, a gentle admonition to Madam Del Ponte of how to comport herself

9 with regard to any opening statement.

10 JUDGE ORIE: I wouldn't even call it an admonition.

11 MR. GUY-SMITH: I am sorry, a gentle statement, then. I think you

12 have pointed out that well she does have a format side of the courtroom if

13 she does choose to make any form of political statement. This is, as we

14 are all quite aware, not a political trial but a criminal one.

15 I was going to suggest that perhaps in the event she does choose

16 to make an opening statement, or the first part of an only statement, that

17 she present such remarks to the Chamber so that you can make a prior

18 determination of whether or not it does, in fact, comport with the

19 principles that you've articulated.

20 [Trial Chamber confers]

21 MR. GUY-SMITH: I raise this for a very specific reason, Your

22 Honour. I can count on one hand the number of times that I have ever

23 stood up and objected to an opening statement being made by an opponent.

24 I find it something that is not particularly beneficial, nor is it

25 something that I particularly care to do, and I don't want to be in a

Page 344

1 position where I'm doing that here because of the concerns I have and the

2 rights that have to be protected.

3 So I'm trying to fashion not only a remedy, if this is going to be

4 the procedure, where two people from the Prosecutor's Office are going to

5 make a statement, but also because of the concerns that I have. And I

6 leave it at that.

7 JUDGE ORIE: Yes, I do understand that.

8 Since it is an issue that has been raised now two minutes ago, I

9 suggest that, first of all, you speak with Mr. Re to see whether your

10 concern is justified in any way. We'll adjourn at this moment.

11 Mr. Re, you'll have an opportunity to respond to that after the

12 break, and I do not expect anything else to be discussed after the break

13 then; perhaps this issue but very briefly.

14 Second, the Chamber might come with a decision on the time granted

15 to the Prosecution to present its case.

16 Therefore, we'll stand adjourned --

17 Yes, Mr. Emmerson.

18 MR. EMMERSON: Just one matter.

19 JUDGE ORIE: I'm a bit concerned about interpreters and

20 technicians, so therefore if it is a matter that could be left until after

21 the break --

22 MR. EMMERSON: Yes, if Your Honour is happy, I can do that.

23 JUDGE ORIE: Then I'd suggest that we take a break for 25 minutes,

24 that we resume at 1.25, and it should be clear to everyone that we have

25 then only a limited time left.

Page 345

1 --- Recess taken at 1.01 p.m.

2 --- On resuming at 1.26 p.m.

3 JUDGE ORIE: There are two matters remaining on our agenda, the

4 second one being a decision by the Trial Chamber on the time to be granted

5 to the Prosecution to present its case; and the first one, whether there

6 are any additional observations to be made in relation to Madam Del Ponte

7 participating in the opening statement of the Prosecution.

8 MR. RE: The Prosecutor, Madam Del Ponte, wishes to open the case,

9 to initiate the opening, to underscore the importance she personally

10 places on these proceedings and the fact that they have got so far. The

11 Prosecutor is, of course, fully aware of the line between political and

12 legal statements. The Prosecutor is entitled to make a statement before

13 the Chamber. There is no provision in the rules permitting or allowing

14 Defence counsel to vet the opening statement after submitting it to them

15 for approval of either party, Prosecution or Defence.

16 The Prosecutor certainly doesn't propose to submit to

17 Mr. Guy-Smith or anyone else her opening statement for approval or vetting

18 in advance. And a suggestion that she would come in here and make a

19 political statement as opposed to a legal statement addressed to the case

20 itself is, or could be construed as, an attack upon her integrity as a

21 prosecutor, and she fully refutes any such suggestion.

22 Rest assured, the Prosecutor intends to address the Trial Chamber

23 on matters relating to this case.

24 JUDGE ORIE: Any need to respond to that, Mr. Emmerson.

25 MR. EMMERSON: No. I don't need to respond to that, but under the

Page 346

1 general rubric of this item, we had previously indicated that though we

2 were making an opening statement, it wasn't anticipated that Mr. Haradinaj

3 would be making an opening statement under Rule 84 bis. He has now wishes

4 to reconsider his position in light of the Prosecutor's decision to open

5 the case light; and if he does make a statement, it will be a short one, a

6 very short one, not one which will, in any way, affect the overall time

7 frame that I have already outlined to the Trial Chamber. Insofar as he

8 would wish to make a statement, it will be a statement that will be within

9 the time frame that I have indicated.

10 Secondly, he would request, and I would request on his behalf,

11 that Ms. Del Ponte, if she was to take part in the opening proceedings, be

12 present to hear his statement, and not to depart the proceedings after she

13 has made her own.

14 JUDGE ORIE: Mr. Guy-Smith.

15 MR. GUY-SMITH: Well, I think the remarks made by Mr. Re point out

16 the precise problem. "Whatever importance she personally places on these

17 proceedings and the fact that they have gotten so far" is something she

18 can do outside of the courtroom, not inside of the courtroom. I certainly

19 wasn't suggesting that I vet her statement, if she wishes to give it to

20 me. I'm more than happy to look at it in whatever language she submits it

21 in. I was suggesting rather that the Chamber make that determination.

22 Finally, with regard to her integrity, I make no comment

23 whatsoever. I certainly wasn't intending, by these remarks, to make any

24 comments about her integrity.

25 JUDGE ORIE: First of all, the change of mind of Mr. Haradinaj is,

Page 347

1 to system extent, surprising because it suggests, more or less, that an

2 opening statement would be any different if -- depending on whether Mr. Re

3 addresses this Chamber or whether Madam Del Ponte addresses this Chamber.

4 And I think that I'd been clear before the break that if Madam Del Ponte

5 chooses to represent the Prosecution during the opening statement, showing

6 a particular interest in this case by her mere presence, how that could

7 trigger, apart from the presence of Mr. Haradinaj - well, he's present

8 anyhow - but finally, Mr. Haradinaj is entitled to make such a statement,

9 at least we can allow it.

10 I am not deciding at this moment whether this late change of mind,

11 and the reason given for it, would make the decide to allow such a

12 situation. I have to look at the rules Chamber to look at the rules very

13 precisely also. It should be under the -- let me just have a look at

14 this.

15 MR. EMMERSON: I think it's page --

16 JUDGE ORIE: "If he or she so wishes, and the Trial Chamber so

17 decides," so such a decision is not there at this moment.

18 MR. EMMERSON: Yes, I understand.

19 JUDGE ORIE: Further, I may draw your attention to the fact that

20 such a statement is under the control of the Trial Chamber.


22 JUDGE ORIE: And, of course, just as some concern was expressed by

23 Mr. Guy-Smith that I could not exclude for full 100 per cent that concerns

24 about the content of a statement, I would say more or less, in response to

25 Madam Del Ponte's participation in an opening statement, might not come up

Page 348

1 for the Chamber.


3 JUDGE ORIE: But we'll consider the matter and let you know.

4 MR. EMMERSON: Just one matter. It's not that -- entirely right

5 to say that there was -- that this is a situation in which there was a

6 firmly settled position communicated to the Trial Chamber. The matter has

7 been under review all work. A provisional decision had been taken, and

8 among the factors that have unquestionably borne on Mr. Haradinaj's

9 decision-making is this latest development.

10 JUDGE ORIE: I do understand that, and the Prosecutorial situation

11 is quite clear. There's no decision yet. And we'll consider the matter.

12 Of course, it may be clear, also from my previous observations, that

13 although the Chamber is aware that, unlike in common theft cases in

14 Winbourne, that these cases here cannot be denied to have, not in its

15 adjudication but its context, sometimes some political elements. The

16 functioning of this Tribunal is discussed often by politicians.

17 Politicians are sometimes addressed by those representing organs of this

18 Tribunal.

19 Also, from what I learned from the media is that politicians draw

20 consequences of what happens in and outside this Tribunal but related to

21 this Tribunal. This Chamber wants to focus on adjudication of charges

22 brought against individuals. That's what our focus is on, not on

23 political precursors, not on political effects, not on political

24 discussions.

25 Mr. Emmerson, I'm certain that to the extent at that

Page 349

1 Mr. Haradinaj, whom I understand has a political career to the extent that

2 he doesn't understand that yet, that you certainly could assist him in

3 understanding that.

4 MR. EMMERSON: I think he does understand.

5 JUDGE ORIE: Then the second issue, and let me just see -- this

6 Chamber does not feel that it is in a position to -- not only not to

7 instruct, well, even not to guide the Prosecutor of this Tribunal how to

8 spend her time. If she considers it of importance to participate in the

9 opening statement delivered by the Prosecution and then decides that she

10 has other things to do and therefore either follow from a distance what

11 happens in these proceedings or do other things being reported about at a

12 later stage, that Madam Del Ponte is entirely free to do so.

13 And I don't know to whom the request was addressed that she'd stay

14 and hear Mr. Haradinaj's submissions. If it was addressed to the Chamber,

15 the answer would have been -- if it's directly addressed to her, then Mr.

16 Re will consider whether or not to convey this to Madam Del Ponte or not.

17 MR. EMMERSON: I was certainly not asking to invoke the Tribunal's

18 jurisdiction to issue an order of any kind.


20 MR. EMMERSON: But it is a request that would be addressed to the

21 Prosecutor.

22 JUDGE ORIE: We are on the same line as far as the legal aspects

23 are concerned. Those are the only ones that do concern the Chamber.

24 That's as far as the opening statement is concerned.

25 Mr. Re, for your information, you have certainly observed my total

Page 350

1 ignorance on what happened in the Popovic case. I know now what happened

2 on the 14th of July, 2006. I'll read what happened there because it seems

3 to have raised some concerns with Mr. Guy-Smith, so I think this it's wise

4 to better understand what caused his concerns.

5 Then I'm not raised in the system applied here, I'm not raised in

6 a system where the opening statement are the start of a case. Therefore,

7 over this weekend, I'll better inform myself. Although I have a general

8 knowledge of what an opening statement is for in the tradition where it's

9 usually applied, I'll further orient myself on what is an opening

10 statement.

11 Madam Del Ponte is working already for such a long time here that

12 even if she might be in a similar situation as I am, that is, not be

13 familiar with opening statements in her own system -- unfortunately, in

14 Switzerland, every canton has its own system of criminal procedures. I

15 would have no idea whether she was familiar with it already from her past.

16 But I have no doubt that she still -- or irrespective of whether she had

17 already an appropriate -- not an appropriate, had already a thorough

18 knowledge of what an opening statement is for, that she certainly would

19 have acquired that during the many, many years that she has already worked

20 in this Tribunal. So I'll try to catch up with her so that we're here in

21 a common understanding of what an opening statement is for.

22 Then, the second issue, time for the presentation of the

23 Prosecution case. On the basis of the information you have provided until

24 now, the Chamber grants the Prosecution 175 hours examination-in-chief to

25 present its case. This is not to encourage the use of 175 hours if less

Page 351

1 would do, and this is not a decision for eternity. As I said before

2 today, the Chamber will take a flexible approach and will also look at how

3 the time is used and reserve all rights to adapt the number of hours

4 granted if good cause exists to do so.

5 Is there any other matter to be raised at this moment? I don't

6 see any applications.

7 Then I'd like to thank the parties for their cooperative attitude

8 and their efficient way of assisting the Chamber in performing its duties.

9 We'll adjourn until -- it's good that I am stopped for a --

10 because there are matters that will take not more than one minute.

11 First of all, the parties are informed that the Chamber envisages

12 at this moment not to sit on the 29th and the 30th of March. It's not

13 definitive, but that's what we envisage will happen. It will not sit -

14 but also there changes are possible - from the 10th to the 13th of April;

15 from the 1st to the 4th of May; May 25th; the 8th of June; the 23rd to the

16 27th of July. And it may not be a secret to you that the 6th and the 9th

17 and the 30th of April are UN holidays; therefore, not sitting. The same

18 is true for the 28th of May.

19 Finally, the parties are informed that for reasons of economy,

20 that the Prosecution witnesses will be referred to by the final number in

21 their pseudonyms. For example, Witness SST7/65 will be referred to simply

22 as Witness 65, unless there's any reason to give further details.

23 Since there are no matters -- no other matters.

24 [Trial Chamber confers]

25 JUDGE ORIE: We'll adjourn until Monday, the 4th of March, quarter

Page 352

1 past 2.00, Courtroom I.

2 --- Whereupon the hearing adjourned at 1.45 p.m.,

3 to be reconvened on Monday, the 5th day of

4 March, 2007, at 2.15 p.m.