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
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.
1 JUDGE ORIE: Mr. Balaj, can you hear me in a language you
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
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.
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.
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.
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.
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
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 ...
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
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
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
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.
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
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?
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
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.
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.
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 --
20 MR. EMMERSON: Yes.
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.
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 --
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?
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
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.
24 JUDGE ORIE: Yes.
25 MR. GUY-SMITH: The identity of the witness, I think, would take
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
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
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
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
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
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.
1 JUDGE ORIE: Yes.
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.
16 JUDGE ORIE: Yes.
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
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.
7 JUDGE ORIE: Yes.
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
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
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.
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
1 of the case. I know what he's talking about; he knows what I'm talking
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
1 our view, and we are endeavouring to clarify that matter with providers.
2 JUDGE ORIE: Okay.
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.
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
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
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
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
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
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 --
9 JUDGE ORIE: Okay.
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.
2 MR. RE: Can we move into private session, please.
3 JUDGE ORIE: Yes. We'll move into private session.
4 [Private session]
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
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.
11 JUDGE ORIE: Yes.
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
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
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
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.
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
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.
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
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
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
1 Mr. Guy-Smith - and we'll get that to them today.
2 Were there any other matters that Your Honours wished me to
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
1 of whether the Chamber considers this what a Chamber order could also
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
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 --
6 JUDGE ORIE: Yes.
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
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
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
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
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.
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
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.
1 JUDGE ORIE: Therefore, military matters and post mortem
2 examinations. Any of the other Defence want to add anything? I see no
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
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
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
1 Prosecution's proposals which came from trial judgements or documents.
2 So, in short, we'll have something back to the Defence by
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
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
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]
11 Pages 305-309 redacted. Private session.
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
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.
13 JUDGE ORIE: Yes.
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.
21 JUDGE ORIE: Not.
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.
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
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
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,
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
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.
5 JUDGE ORIE: Yes.
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
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.
7 JUDGE ORIE: Mr. Re.
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
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:
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
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
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
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.
19 JUDGE ORIE: Yes.
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
2 JUDGE ORIE: Yes.
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 --
13 JUDGE ORIE: Yes.
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
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
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
21 JUDGE ORIE: Yes.
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
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
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
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 .
7 JUDGE ORIE: Yes.
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
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
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
25 MR. RE: In general, if a witness is on the list but has spoken to
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.
11 JUDGE ORIE: Yes.
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
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
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.
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
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
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
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
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.
14 JUDGE ORIE: Yes.
15 MR. EMMERSON: In short, I'm happy with the proposal of 12 noon on
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
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
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
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
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 --
14 JUDGE ORIE: Yes.
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
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
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
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.
17 MR. EMMERSON: Yes.
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
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.
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?
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.
16 JUDGE ORIE: Yes.
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
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
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
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
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
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.
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
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
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
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.
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
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,
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
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.
21 MR. EMMERSON: Yes.
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
1 for the Chamber.
2 MR. EMMERSON: Yes.
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
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
25 Mr. Emmerson, I'm certain that to the extent at that
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.
19 JUDGE ORIE: Yes.
20 MR. EMMERSON: But it is a request that would be addressed to the
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
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
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
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
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.