Page 66
1 Wednesday, 23 February, 2011
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom. Madam Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honour. Good morning everyone
9 in and around the courtroom. This is case number IT-04-84bis-PT, the
10 Prosecutor versus Haradinaj et al.
11 JUDGE MOLOTO: Thank you so much. Can we have appearances for
12 the day, please, starting with the the Prosecution.
13 MR. ROGERS: Yes, good morning, Your Honour. Paul Rogers
14 appearing for the Prosecution, together with Aditya Menon and
15 Ms. Elena Martin, and our Case Manager today, Ms. Donnica Henry-Frijlink.
16 JUDGE MOLOTO: Thank you very much.
17 And for the Defence, starting with Mr. Haradinaj.
18 MR. EMMERSON: Good morning, Your Honour. Ben Emmerson appearing
19 for Ramush Haradinaj, together with Mr. Rod Dixon, assisted by
20 Ms. Annie O'Reilly and Mr. Andrew Strong.
21 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
22 And for Mr. Balaj.
23 MR. GUY-SMITH: Good morning, Gregor Guy-Smith, Colleen Rohan,
24 Chad Mair, and Gantian Zyberi on behalf of Mr. Balaj.
25 JUDGE MOLOTO: Thank you so much.
Page 67
1 And for Mr. Brahimaj.
2 MR. TROOP: Good morning, Your Honour. Paul Troop appearing for
3 Mr. Brahimaj, assisted by Ms. Sophie Rigney.
4 JUDGE MOLOTO: Thank you so much.
5 This is the first time we are meeting in the new year and I know
6 it's very deep into the year, but let me take this opportunity just to
7 welcome you back and wish you a happy new year. This is a very small
8 courtroom for this kind of people. Is everybody comfortable,
9 particularly on that side? You are okay. Thank you so much.
10 Well, now, pursuant to Rule 65 bis A of the rule, the purpose of
11 a Status Conference is to organise exchanges between the parties so as to
12 ensure an expeditious preparation for trial and review the status of this
13 case and to allow the accused to raise issues, including issues related
14 to his mental and physical condition.
15 This is the third Status Conference in this case. Now, the last
16 Status Conference was held on the 26th of October, 2010, and this Status
17 Conference is being held now because Rule 65 bis A requires that a Status
18 Conference should be held within 120 days of the last Status Conference.
19 It is, however, important to raise the implications of the
20 Trial Chamber's decision on application on behalf of Ramush Haradinaj for
21 certification pursuant to Rule 73 B. Until the Appeals Chamber decides
22 on appeal on the Haradinaj Defence, there will be uncertainty about the
23 scope of the indictment and about which witnesses the trial Chamber
24 should here. This plainly limits the effective planning that can be made
25 for the trial in the interim. In addition to that, the Balaj Defence
Page 68
1 also filed a motion for certification to appeal the Trial Chamber's
2 decision on clarification of indictment. These two appeals overlap and
3 they deal with issues which really are putting brakes on what can be done
4 pending the appeal.
5 I don't know whether the parties have any comments to make on
6 this issue. Yes, Mr. Emmerson.
7 MR. EMMERSON: Your Honour, it's obviously correct to say that
8 pending the outcome of the Haradinaj appeal in particular, there are
9 unanswered questions as to the scope of the retrial. But it's also right
10 to say, if I can put this matter, so to speak, on the opposite pole or in
11 the opposite side of the scale, that this was a trial which was expected
12 to begin on or around the 24th of January, that Mr. Haradinaj is in
13 pre-trial custody, and that he remains in custody despite originally a
14 decision of the Trial Chamber to admit him to provisional release. On
15 the clear understanding that the trial would proceed swiftly. It was
16 then and remains now his imperative that this trial should begin as early
17 as possible, but of course, subject to the competing imperative that it
18 should be confined within the proper scope of the retrial that the
19 Appeals Chamber has ordered.
20 And I put those two competing considerations before the Trial
21 Chamber because whilst it's right to say that certain important questions
22 about the the scope of the trial and the nature of the evidence to be
23 called remain yet to be determined, it does not, in our submission,
24 follow that the continued preparation for trial, both of the parties and
25 with the assistance of the Trial Chamber, should stop. Because if that
Page 69
1 happens at this stage, there will inevitably be a delay until the Appeals
2 Chamber judgement is handed down, and once handed down if it is only then
3 that the the parties are enabled to proceed with their preparation for
4 trial, then there will inevitably be yet further delay whilst the steps
5 that are necessary to be completed take place, and in particular I have
6 in mind the disclosure to the Defence of the axiom at the centre of the
7 Prosecution's case on the retrial which requires investigation. That
8 involves lifting of redactions on the forenamed witnesses in the first of
9 two outstanding motions and the background disclosure material in respect
10 of Witness 81, that is the second motion.
11 There is no reason in principle while the Trial Chamber cannot
12 now rule upon those motions. If the Trial Chamber were to do so and to
13 grant them, the time that is being occupied by the Appeals Chamber, can
14 at the same time be occupied by the parties in being ready for trial, in
15 order to secure the objective that once the Appeals Chamber judgement is
16 handed down, we are ready to go. That is to say, all parties are ready
17 to go.
18 And in our submission, that is something which serves the proper
19 administration of justice in part because further continued delay whilst
20 the accused are in custody is unjust. And so whilst it's right to say
21 that if one proceeds on the strictest order of business, one would wish
22 the outcome of the appeals judgement to be known before one ruled or
23 invited the Trial Chamber to rule, on the substance of all outstanding
24 motions, there is in principle no reason why the Trial Chamber cannot
25 make those rulings now, and if the Trial Chamber does not make those
Page 70
1 rulings now, the consequence is going to be at least a months and
2 probably two months additional delay all of which is capable of being
3 avoided given that the accused are in custody.
4 And that is not with respect an irrelevant consideration. The
5 Trial Chamber has taken the view that given the delay that had already
6 taken place an order for provisional release was the right result. The
7 Appeals Chamber has overturned that decision, but it cannot be the case
8 that either the Trial Chamber or the Appeals Chamber, certainly not the
9 Defence, and one would hope not the Prosecution, are indifferent to the
10 interrelationship between avoidable delay and continued pre-trial
11 detention. This is pre-trial detention with respect to the man who was
12 on provisional release all the way through the original trial and was
13 then acquitted.
14 Is the delay avoidable? Answer, we respectfully submit plainly
15 it is. It's avoidable by the Trial Chamber ruling on the two outstanding
16 motions. And in our submission that is the right course now to pursue.
17 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
18 Mr. Guy-Smith, anything you would like to raise?
19 MR. GUY-SMITH: No, Your Honour.
20 JUDGE MOLOTO: Mr. Troop.
21 MR. TROOP: No, Your Honour.
22 JUDGE MOLOTO: Mr. Dixon?
23 MR. ROGERS: I think you meant Mr. Rogers, Your Honour.
24 JUDGE MOLOTO: Mr. Rogers.
25 MR. ROGERS: Mr. Dixon wasn't invited to have another go.
Page 71
1 JUDGE MOLOTO: I'm sorry, Mr. Rogers.
2 MR. ROGERS: Your Honour, we recognise of course there is a
3 balancing exercise to be undertaken and Your Honour and Your Honours
4 colleagues have before you all the applications and the arguments in
5 relation to them, and Your Honours, of course, will recognise that there
6 is a balance to be struck. The Prosecution is certainly not indifferent
7 to accused persons sitting in custody awaiting their trial. However, my
8 learned friends have made an application that one of the central tenets
9 to which is that the case should be restricted. They also make an
10 application for disclosure relating to a witness they say should not be
11 admitted. And so far as he is concerned, Your Honours have before you
12 information which indicates that there may be risks to that individual,
13 risks to others. That is part of the balancing exercise that Your
14 Honours have to undertake in determining whether a delayed disclosure
15 application should be granted in relation to that individual. Of course,
16 if the Appeals Chamber were to rule that that evidence should not be
17 admitted, there is a risk that that individual could be exposed to
18 unnecessary risk to himself, likewise to the others.
19 It's part of the balance which Your Honours have to take into
20 account, and the issues relating to that have been set out and no doubt
21 the Court will determine what the right course of action is. But
22 certainly we are not indifferent, and I would hope it wasn't being
23 suggested that we were. I don't think Mr. Emmerson was suggesting we are
24 indifferent.
25 In relation to other disclosure matters, I have last evening sent
Page 72
1 out to my learned friends a response to their various other requests,
2 it's an additional response to one I'd already provided. There are some
3 outstanding disclosure matters that we can attend to. We are certainly
4 mindful of that and are progressing it to the best of our ability given
5 the outstanding motions that exist. So the Prosecution is very mindful
6 of its obligations. We've litigated where we disagree. We responded, I
7 hope my learned friends would agree, swiftly to the various requests and
8 some delays but not excessive, and we are progressing into litigation
9 where disagreements arise. So I think the the parties are doing the best
10 they can to progress issues, but we respectfully agree with Your Honour
11 that at this stage of affairs at the moment with outstanding appeals does
12 somewhat put the Trial Chamber in some strait jacket to some extent on
13 how it further progresses.
14 JUDGE MOLOTO: Yes, Mr. Emmerson.
15 MR. EMMERSON: The Trial Chamber, with respect, can't be
16 simultaneously conducting a balance, as Mr. Rogers says it is, and yet be
17 in a strait jacket. The right analogy is a balance, and the only factor
18 that Mr. Rogers puts in the balance against proceeding to rule on these
19 motions now is the suggestion that were the Appeals Chamber to determine
20 that Witness 81 - and let us focus on him for a moment - should not be
21 called at the retrial, the Trial Chamber would have made an order for
22 disclosure in relation to a witness who was not then to be called.
23 What's wrong with that? Well, says Mr. Rogers, that might expose the
24 witness to risks which are risks that should properly be taken if he is
25 going to be called but need not be taken if he is not going to be called.
Page 73
1 So that, if I may put it this way, significantly reduced consideration is
2 the only matter Mr. Rogers is in a position to put into the balance on
3 that side of the scale.
4 To which the answer is a very simply one, this is a request for
5 disclosure only to the Defence. That will be subject to a range of
6 restrictions, culled from the restrictions that were imposed by the
7 previous Trial Chamber at the suggestion of the Defence on the disclosure
8 of information in respect of protected witnesses at the original trial.
9 There is not now nor could there be the slightest suggestion that those
10 acting for Mr. Haradinaj or Mr. Haradinaj himself or any one on his
11 behalf or in respect of either of the other accused, any individual, is
12 shown to have interfered with witnesses. Each and every one of the
13 provisional release decisions successively throughout the original trial
14 and thereafter has emphasised, certainly in respect of Mr. Haradinaj,
15 that there is no suggestion of improper conduct by the Defence or the
16 accused or those acting on his instructions or behalf in respect of
17 witness interference.
18 That being the case, there is in reality nothing to put into the
19 scales on the side of delay and every imperative to enable the trial to
20 be ready once the Appeal Chamber gives clear directions as to its scope.
21 And let us be under no misunderstanding, the Defence intends to
22 investigate Witness 81 properly and with appropriate safeguards but to
23 investigate. The Defence carried out such an investigation in respect of
24 Witness 80, and the material that it revealed, which will in due course
25 potentially be adduced during the trial will, we submit, demonstrate to
Page 74
1 the Trial Chamber the witness is manifestly unreliable and a similar
2 investigation is inevitable in respect of Witness 81. It will happen.
3 And that being the case, in our submission, to put matters back so that
4 we now wait another five or six weeks for the appeal judgement, then the
5 Trial Chamber lifts the redactions, and then we have a month or two
6 months of further investigation, places the start of this trial a good
7 six months later than it was envisaged. Six months during which
8 Mr. Haradinaj remains in custody despite having been provisionally
9 released throughout the proceedings to date and acquitted of all counts
10 by the original Trial Chamber. That, with respect, would be an unjust
11 result and one which is eminently avoidable with effective trial
12 management to secure the proper interests of justice.
13 MR. ROGERS: My learned friend indicates.
14 THE INTERPRETER: Could the counsel please use the long
15 microphone.
16 MR. ROGERS: I have the microphone on.
17 THE INTERPRETER: The longer microphone, please.
18 MR. ROGERS: Oh, forgive me. Okay. Is that better?
19 JUDGE MOLOTO: Mr. Interpreter, is that better? Or whoever
20 intervened.
21 THE INTERPRETER: Yes, it is better, thank you.
22 MR. ROGERS: I'll try to move to the long microphone. Your
23 Honours, my learned friend refers to one balancing exercise and one
24 factor which I put into the balance, as he put it. Your Honours, of
25 course the other one, which I didn't mention, is that my learned friends
Page 75
1 would become entitled and would receive material to which, in fact, they
2 are not entitled if this witness is not to be admitted. And they would
3 have that when in fact the Court determined that that was a person who
4 should not be called and could not be called before the Court, and
5 therefore the material that they receive is -- it would, in fact, become
6 material to which they were never entitled. That's really the issue
7 where we stand. That's one of the issues of where we stand. And I'm
8 sure Mr. Emmerson will want to say that, look, that shouldn't be a reason
9 to stop disclosure. Your Honours, we could bang on against each other
10 all morning on these particular points, but you have before you the
11 arguments of the parties and you will carry out as I'm sure, and I'm
12 confident you will, and I'm sure my learned friends are of confident that
13 you will, you will carry out the exercise in the interests of justice
14 that we seek you to do. And there it is. I'm not going to say anymore.
15 Mr. Emmerson looks as though he wishes to jump to his feet to make
16 perhaps the same point again.
17 JUDGE MOLOTO: Is that a fact, Mr. Emmerson?
18 MR. EMMERSON: I certainly don't want to make the same point
19 again, but as soon as Mr. Rogers raises a new point that he didn't raise
20 when he had the opportunity to respond, may I simply correct him, it is
21 completely wrong to suggest that the Defence are not entitled to this
22 material if in due course the Prosecution doesn't call the witness. The
23 Defence are always entitled under the rules to disclosure in respect of
24 each witness that the Prosecution intends to rely upon. Were this not a
25 retrial but a trial, we would be entitled to that disclosure as of right
Page 76
1 and it would have occurred. Indeed, in respect of one witness, the
2 Prosecution has not yet even served the witness' statement on Defence,
3 that's 77. It is a complete misrepresentation of the position under the
4 rules to suggest that the entitlement of the Defence to disclosure arises
5 only at the moment that the witness is in fact called by the Prosecution
6 at trial. Many witnesses are in the end not called, but the Defence's
7 right to entitlement to disclosure crystallises at an earlier stage, it
8 crystallises at the stage when it becomes necessary for the fair
9 preparation for trial. We are at that stage this morning.
10 JUDGE MOLOTO: Thank you very much, Mr. Emmerson. I believe
11 that's the end of the submissions that the parties would like to make.
12 Let me just indicate that I've heard what you've said
13 Mr. Emmerson, I've heard what you've said, Mr. Rogers. As we indicated
14 in the various e-mails that were exchanged when this issue was raised by
15 the Defence, this is an issue that is actually before the Trial Chamber
16 and not before the Pre-Trial Judge, and I have heard it. I've heard the
17 submissions of the parties, I'll put this before the Chamber, and the
18 Chamber will decide the issues as expeditiously as it possibly can,
19 taking into account the interests of justice and balancing the issues
20 that were raised in the submissions this morning. Thank you very much.
21 I might sound like I'm contradicting myself in the next point,
22 the next point I would like to raise is the point of agreed facts.
23 Again, a point which may be bedeviled by the very fact that the appeals
24 are still pending; however, be that as it may to the extent that it is
25 possible for the parties to agree any further facts, I would ask the
Page 77
1 parties to and urge them to continue to do so.
2 Yes, Mr. Emmerson.
3 MR. EMMERSON: Can I indicate, and this rather reinforces the
4 point I was making a moment ago, it's well understood now between the
5 parties and I hope in communications to the Trial Chamber --
6 JUDGE MOLOTO: You are not re-opening the --
7 MR. EMMERSON: No, no. I'm not re-opening it. I'm responding to
8 the point that you've made just a moment ago, Your Honour, that we cannot
9 take agreed facts any further not because of the outstanding Appeals
10 Chamber judgement, although that may effect the facts that are finally
11 admitted, but because disclosure has not been given. Until disclosure
12 has been given we account agree the remaining outstanding potentially
13 agreeable facts which is another reason why with respect disclosure needs
14 to be resolved as quickly as possible.
15 JUDGE MOLOTO: I have two counsel on their feet.
16 Yes Mr. Guy-Smith.
17 MR. GUY-SMITH: Yes, I avoided the last fencing match, although I
18 concur with Mr. Emmerson. And with regard to the last match and with
19 regard to what was just said, I cannot stress how important it is that we
20 have full disclosure before we could begin to engage in the exercise
21 suggested by Your Honour. It is impossible at this time.
22 JUDGE MOLOTO: I note the point. Okay. I would like to deal
23 with the status of the accused and I would like to find out from each of
24 the accused whether you have any questions or issues you wish to bring to
25 my attention regarding your health or the treatment you are receiving at
Page 78
1 the UNDU. We'll start with you, Mr. Haradinaj.
2 THE ACCUSED HARADINAJ: Your Honour, everything is okay. No
3 question.
4 JUDGE MOLOTO: Thank you so much, Mr. Haradinaj.
5 Mr. Balaj.
6 THE ACCUSED BALAJ: [Interpretation] Your Honour, everything is
7 okay. Thank you.
8 JUDGE MOLOTO: Thank you very much, Mr. Balaj.
9 Mr. Brahimaj.
10 THE ACCUSED BRAHIMAJ: [Interpretation] I have nothing to add,
11 Your Honour.
12 JUDGE MOLOTO: Thank you so much, Mr. Brahimaj.
13 Any other items the parties wish to raise?
14 Mr. Rogers, I see you.
15 MR. ROGERS: Yes, Your Honour. There are two matters, and one
16 relates to Mr. Kabashi. Your Honours, I raised with my learned friends
17 last evening that in our opinion it will be necessary to apply for a
18 videolink to begin to receive any testimony that he may wish to give.
19 His current position is that he does not wish to testify. We have
20 received some explanation as to the basis for that which I have disclosed
21 to my learned friends. I hope that they have received it. I hope there
22 was some movement -- yes, I'm seeing nods. They have received the
23 explanation from the individual. Your Honour, I understand from my
24 learned friends that they will oppose any videolink application, and my
25 question for Your Honour is should we make that application in advance of
Page 79
1 determination of these remaining issues prior to any date being set for
2 trial, or should we wait until we know when the date set for trial is so
3 that we can deal with it with any necessary subpoena and/or warrant
4 application at the same time?
5 Which leads me to my next point. I know that we are all a little
6 uncertain as to when the actual trial date will be. The Prosecution
7 would certainly wish for at least six weeks notice of when that trial
8 date will be so that we can make whichever necessary applications we need
9 to make if it's, for example, a videolink application, and also that
10 appropriate visa and travel arrangements can be made for such witnesses
11 as require them. I make that -- I just put that on the table now so that
12 Your Honour is aware of the sort of time notice that we would need to
13 ensure that that the trial could start efficiently as I understand it.
14 It may be my learned friends require more notice than that or would wish
15 for more notice than that, but I thought it helpful at least to indicate
16 to Your Honours where we stand. I know it's difficult in identifying
17 time before the Tribunal, but that is the type of notice we would need to
18 ensure it moves smoothly on the first day.
19 So, Your Honour, there is it is. I just wanted to put on the
20 table the question of Mr. Kabashi so that it's before you and you are
21 aware that there is an issue relating to him and which may effect the
22 modalities of the proceedings before the Tribunal.
23 JUDGE MOLOTO: Okay. Before I comment, I don't know whether --
24 yes, Mr. Emmerson.
25 MR. EMMERSON: Your Honour, can I say that as these discussion
Page 80
1 moves forward, it may well be that a solution suggests itself from the
2 competing interests of the parties. If Mr. Rogers' request for six weeks
3 notice were to be taken as a six week delay on top of all the other
4 delays, then we would strongly resist it. If on the other hand that
5 time-frame runs coterminously with the delay that we are already
6 inevitably facing, then there is no loss of time as a result. So the
7 solution may well be for the Trial Chamber to fix a date for trial
8 sufficiently far in advance to be confident but by that time we will have
9 the Appeals Chamber judgement. May I suggest hypothetically, the 1st of
10 May. That gives the Prosecution two months, slightly longer than they
11 are asking for, to get their tackle in order and to be ready to start the
12 trial, and providing Your Honour and the Trial Chamber accede to the
13 request of the Defence to order disclosure now, it also gives the Defence
14 two months to conduct investigations. And though it will mean that my
15 client has remained in custody for four months longer than was expected,
16 it will keep that unjust additional delay to a minimum.
17 All of which, with respect, points to the conclusion that the
18 Trial Chamber should set a date, give the Prosecution notice that that is
19 when they need to be ready, put the Defence in a position so that they
20 can be ready for that date, and enable everyone to know that this is not
21 a trial that is going to stall and start and sputter indefinitely
22 throughout this year, that the Trial Chamber means to get to grips with
23 the procedure. Now, obviously if that date has to be moved back for
24 reasons that are unavoidable on either side, then either side can make an
25 application to move it. But without a date, these proceedings begin to
Page 81
1 look as though they are not effectively moving forwards. But obviously
2 if the Trial Chamber fixes a date, then we need disclosure now. So all
3 of these different considerations, including Mr. Rogers' own latest
4 consideration, points towards the fixing of a date on or about the 1st of
5 May, coupled with disclosure now and notice to the Prosecution now and
6 then what seem otherwise to be time-wasting tactics on the part of the
7 Prosecution, I'm sure that is a not the way they were intended but that
8 is certainly the effect that they will have, can by the Trial Chamber's
9 own effective management of the proceedings be brought together to give
10 these proceedings the appearance that they are entitled to have; namely,
11 proceedings that are being conducted expeditiously, efficiently, and in
12 that manner that secures a fair and swift trial.
13 JUDGE MOLOTO: Mr. Guy-Smith, do you have anything to say to this
14 point? You don't have to.
15 MR. GUY-SMITH: Thank you.
16 JUDGE MOLOTO: Mr. Troop.
17 MR. TROOP: Your Honour, I would agree with Mr. Emmerson, but I'd
18 just like to add one further point in relation to fixing a trial date.
19 It would be of great convenience to the counsel that Mr. Brahimaj would
20 wish to act for him in the trial to have some clarity when the trial date
21 is likely to be so that we can ensure that the counsel he has chosen are
22 in fact available for that trial.
23 JUDGE MOLOTO: Thank you, Mr. Troop.
24 The issue that Mr. Rogers raises of videolink --
25 MR. EMMERSON: Our position is a simple one, Your Honour. The
Page 82
1 Prosecution secured a retrial in this case by complaining to the Appeals
2 Chamber that two witnesses could not be called and were not called by the
3 Trial Chamber. The position now is that one of those two witnesses is
4 currently continuing to be unwilling to testify. If one can put it
5 crudely, half the justification for this retrial has disappeared. We
6 will see what applications the Prosecution makes in terms of subpoenas
7 and videolinks, but all of those applications were made in the original
8 trial and resulted in a witness not claiming that he was scared but being
9 unwilling to testify.
10 Therefore, we will respond to such applications as the
11 Prosecution makes and we will do so having regard to the history, to the
12 applications that were made at the original trial which included this
13 witness attending, refusing to testify, being warned of contempt, being
14 held in contempt, a videolink order, testifying -- being brought to
15 testify again, still refusing to testify. Your Honour has a very sorry
16 history to deal with with this witness, and we will look and see in due
17 course what applications the Prosecution makes and we will respond to
18 them.
19 JUDGE MOLOTO: I understand, and may I suggest we don't deal with
20 the application just yet.
21 MR. EMMERSON: Precisely.
22 JUDGE MOLOTO: We -- let's --
23 MR. EMMERSON: It is in a sense for the the Prosecution to
24 determine when is the right time to make its application, and no doubt it
25 is in close contact with the lawyers acting for Mr. Kabashi both in this
Page 83
1 Tribunal and in the United States who, one would hope, after an interval
2 of several years now have had an adequate opportunity to give their
3 client fully informed legal advice.
4 JUDGE MOLOTO: May I raise the point, the point I wanted to ask
5 was, and I understand that when a motion for videolink is being filed it
6 is appropriate to have a date of hearing mentioned in it. The way I
7 heard Mr. Rogers when he raised the point, it sounded to me like the
8 Defence is opposed to videolink in principle, and I wanted to find out if
9 is it not possible and practical to file a motion in principle to call
10 Mr. Kabashi by videolink and put your arguments there, even if there is
11 no date, and let the parties make their submission. Let's flesh out the
12 principle of the videolink hearing, what the Defence objects to, and why
13 the Prosecution want it. Then we can give a decision in principle.
14 Comes the time when a date is set and I don't know whether he is going to
15 be testifying on the first day of trial, but a date can be given to him
16 when is he going to testify.
17 MR. EMMERSON: Yes. And I see no reason in principle providing
18 the Prosecution is in a position to update the Defence and Trial Chamber
19 on precisely what steps are being taken in relation to communicating with
20 Mr. Kabashi and his lawyers and everybody is fully informed. If that's
21 the case I see no reason.
22 JUDGE MOLOTO: I would imagine that they would make their
23 submissions, Mr. Emmerson.
24 MR. EMMERSON: Yes.
25 JUDGE MOLOTO: And I don't know how they plan to conduct their --
Page 84
1 how to prosecute this application for --
2 MR. EMMERSON: Yes, and may I simply add this: That of course it
3 can be done in principle, equally it can be done with a hypothetical
4 date. So were the Trial Chamber to accede to the suggestion that I make
5 of the 1st of May as the effective start of the trial, the 4th of May
6 could be set as a date for Mr. Kabashi's first attempt to testify. But
7 if experience of the past trial is anything to go by, there will have to
8 be several attempts made before the Prosecution either is in a position
9 to call him or to abandon him. So an early date within the trial would
10 be sensible.
11 JUDGE MOLOTO: Let's not anticipate that. I guess the idea is we
12 can get a principled decision on whether or not videolink is going to be
13 used and what problems the Prosecution encounter, if any, in securing the
14 attendance of Mr. Kabashi. That is their problem. They will deal with
15 that.
16 MR. EMMERSON: Sorry, what I was simply seeking to emphasise, and
17 I hope that in the way in which this issue has matured during the course
18 of this Status Conference, there was a very practical suggestion on the
19 table for the Trial Chamber as a whole to consider which is to fix a
20 start date of the 1st of May, and were that the case, there's no reason
21 why the application for Mr. Kabashi needs to be made in the abstract. It
22 can be made with a date for calling him in mind, and let's see what the
23 colour of the Prosecution's cloth really is.
24 JUDGE MOLOTO: Yes, but Mr. Emmerson that's still in the abstract
25 because it's a hypothetical date. You don't know whether you are going
Page 85
1 to be sitting on the 1st of May. You are saying assuming we are able to
2 sit on the 1st of May.
3 MR. EMMERSON: No, I'm inviting the Trial Chamber to go further
4 and to fix the 1st of May as the trial date. And if either party needs
5 to apply to vacate it then they can do so with reason. I'm inviting, I
6 think with the support of all the accused, the Trial Chamber to fix the
7 1st of May as the start date for the trial and all parties thereafter to
8 work to it.
9 JUDGE MOLOTO: We'll put it before the Trial Chamber, we'll find
10 out. Thank you.
11 Mr. Rogers, when you introduced this point, you then said you
12 moved to the next point, and I must confess to me it looked like you were
13 saying the same point in different words. Would you like to repeat the
14 next point that you were raising that you said was related to this one of
15 videolink?
16 MR. ROGERS: Yes, Your Honour. It really is just about notice.
17 I was asking when should we make the application and it's linked, of
18 course, to the notice required in relation to the trial.
19 JUDGE MOLOTO: Okay.
20 MR. ROGERS: And, Your Honour, since I've had the opportunity to
21 make -- just make a comment, Mr. Emmerson suggested that the Prosecution
22 may be indulging in time-wasting tactics, those are the words that he
23 used. Your Honour, we're not in --
24 JUDGE MOLOTO: He did say -- he doesn't say it is intended but it
25 may seem like.
Page 86
1 MR. ROGERS: Yeah, a tactic is usually intentional, and Your
2 Honour, we are not indulging in any form of time-wasting tactics, and I
3 hope that my learned friends will not repeat such a suggestion.
4 MR. EMMERSON: Just to be clear, what I suggested is that the way
5 the Prosecution is conducting itself is wasting time.
6 JUDGE MOLOTO: Thank you.
7 MR. ROGERS: We don't need to go on about it, I've made my point.
8 JUDGE MOLOTO: You have made your point, thank you.
9 MR. ROGERS: Your Honour, yes, and six weeks notice was just six
10 weeks notice so that we can get matters up and ready.
11 JUDGE MOLOTO: Sure. And am I right to say that if we filed a
12 motion in principle --
13 MR. ROGERS: Yes.
14 JUDGE MOLOTO: -- that would do it because we can do it tomorrow.
15 MR. ROGERS: Yes.
16 JUDGE MOLOTO: We can file that motion tomorrow, and whenever he
17 comes, the decision has been made.
18 MR. ROGERS: Your Honour, and I hope you won't ask us to file it
19 tomorrow. We --
20 JUDGE MOLOTO: No, I'm not saying tomorrow, but I'm saying as
21 soon as possible.
22 MR. ROGERS: Yes, we can put a motion together.
23 Your Honour, I raise one other matter with that and that is that
24 it may be that there are some issues relating to the -- to this
25 particular application related to videolink from which you may need to
Page 87
1 hear from the United States authorities. Having spoken with them about
2 practicalities and management of this particular application, then Your
3 Honour may need to hear from them as to how that can be put into effect.
4 Obviously the Defence would have access to any filing that they made, but
5 I make mention of that.
6 JUDGE MOLOTO: It just seems to make the point even stronger that
7 the sooner we file the motion, the better. And I would imagine that
8 you'll facilitate our communication with the United States officials.
9 MR. ROGERS: Your Honour, we will.
10 JUDGE MOLOTO: Thank you so much, Mr. Rogers.
11 Are you done with your items, Mr. Rogers, before I turn to
12 Mr. Guy-Smith?
13 MR. ROGERS: Yes, thank you.
14 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
15 MR. GUY-SMITH: Yes, just on that last point so that the Chamber
16 is aware, we've been in this world before as well, and I believe that
17 part of what the issue will be deals with some matters of law as they
18 relate to what remedies exist in the United States for a witness in the
19 position that Mr. Kabashi has taken. There's a whole other question that
20 will have to be attended to apart from the niceties of whether or not a
21 videolink is available to the Prosecution or not.
22 JUDGE MOLOTO: That's true. And I would imagine that all that
23 would be fleshed out in the submissions of the parties.
24 MR. GUY-SMITH: I would hope.
25 JUDGE MOLOTO: Thank you, sir.
Page 88
1 What I wanted to find out from the Defence starting with you,
2 Mr. Emmerson, is there any other issue that you would like to raise
3 with --
4 MR. EMMERSON: No, Your Honour.
5 JUDGE MOLOTO: Sorry. I almost said "with the Chamber," that's
6 why I got stuck.
7 MR. EMMERSON: I think if I may say so, everything hinges on the
8 Trial Chamber now fixing a prompt trial date.
9 JUDGE MOLOTO: Thank you so much.
10 Mr. Guy-Smith, any issue that you would like to raise?
11 MR. GUY-SMITH: Not at this time, thank you.
12 JUDGE MOLOTO: Mr. Troop.
13 MR. TROOP: No, Your Honour. Thank you.
14 JUDGE MOLOTO: Thank you so much.
15 Then a date for the next Status Conference will be set in due
16 course, and there being no further issues to raise the Court will adjourn
17 sine die.
18 --- Whereupon the Status Conference adjourned
19 sine die at 9.43 a.m.
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