Page 318
1 Friday, 19 August 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom.
7 Madam Registrar, will you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj,
10 Idriz Balaj, and Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much, Madam Registrar.
12 Could we have the appearances for the day, please, starting with
13 the Prosecution.
14 MR. ROGERS: Yes, Your Honour, Paul Rogers appearing for the
15 Prosecution, together with Ms. Priya Gopalan and our case manager today,
16 Mr. Colin Nawrot.
17 JUDGE MOLOTO: Thank you so much, Mr. Rogers.
18 And for the Defence.
19 MR. EMMERSON: Ben Emmerson for Ramush Haradinaj together with
20 Rodney Dixon, Annie O'Reilly, and Andrew Strong.
21 JUDGE MOLOTO: Thank you so much, Mr. Emmerson.
22 For Mr. Balaj.
23 MR. GUY-SMITH: Gregor Guy-Smith and on behalf of Mr. Balaj with
24 Ms. Rohan and Mr. Mair.
25 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
Page 319
1 And for Mr. Brahimaj.
2 MR. HARVEY: Good afternoon, Your Honour. Richard Harvey,
3 together with Paul Troop, Sophie Rigney, Luke Boenisch, and
4 Ms. Rudina Jasini for Mr. Brahimaj.
5 JUDGE MOLOTO: Thank you so much.
6 Mr. Rogers.
7 MR. ROGERS: Your Honours, we've reached the stage where
8 Mr. Kabashi is due to be called. As I have indicated to the Chamber and
9 all the parties, Mr. Karnavas spoke to me after the first appearance of
10 Mr. Kabashi today in the contempt matter, and instead of saying what he
11 told me, might I invite him to come into the courtroom to address
12 Your Honours directly on the matters that he wishes to raise relating to
13 his views about whether his client should be testifying this afternoon.
14 JUDGE MOLOTO: [Microphone not activated]
15 I have been speaking for some time without a microphone. Can I
16 repeat myself. I was saying it might not be necessary to call him in to
17 come and give an explanation. Let's first hear what the other parties
18 have to say, and I'm asking Mr. Emmerson to please start.
19 MR. EMMERSON: Your Honour, I'm not sure whether you're asking me
20 to respond to the request that the matter be postponed until Monday at
21 this stage, but obviously I have not heard the request articulated or the
22 reasons for it. I would have thought, respectfully, it might be an idea
23 to have Mr. Karnavas into court just to explain the position.
24 JUDGE MOLOTO: Well, I thought Mr. Rogers indicated that he sent
25 a message to everybody --
Page 320
1 MR. EMMERSON: Yes, no, I'm sorry, I've seen --
2 JUDGE MOLOTO: -- about what happened, and therefore I would have
3 expected that you might be having a position --
4 MR. EMMERSON: Well, I've seen Mr. Rogers' letter. Obviously
5 he's conveying what it was that Mr. Karnavas had to say. I apprehended
6 that Your Honours might wish to hear Mr. Karnavas briefly, he's just
7 outside the courtroom to explain the position. I can tell you now that
8 assuming what he says is effectively the same as what Mr. Rogers has said
9 in his letter, we will be taking a neutral position and leaving it to the
10 Tribunal to decide how to approach the matter. I understand that
11 Mr. Kabashi is here in the building.
12 JUDGE MOLOTO: Your position, Mr. Guy-Smith.
13 MR. GUY-SMITH: Based on the representations that were made in
14 Mr. Rogers' e-mail earlier today, coupled with the representations that I
15 saw Mr. Karnavas make over the internet, or whatever you call it,
16 whatever you call this newfangled --
17 JUDGE MOLOTO: Over the movie.
18 MR. GUY-SMITH: Over the movie. My position is two-fold. I
19 recognise the relationship between a lawyer and the client and I
20 recognise the importance of human decency, and I am willing to accede to
21 Mr. Karnavas' request if it remains what I believe it to be.
22 JUDGE MOLOTO: Mr. Harvey.
23 MR. HARVEY: Your Honour, I haven't seen the moving-picture
24 image, but I have spoken with Mr. Karnavas directly and I do understand
25 his position in respect of his client and I leave the matter respectfully
Page 321
1 in the hands of the Chamber.
2 [Trial Chamber confers]
3 JUDGE MOLOTO: Okay. Thanks for the positions that we got from
4 the parties.
5 May Mr. Karnavas please be brought in just for a complete record.
6 Indeed, please do. Welcome, Mr. Karnavas.
7 MR. KARNAVAS: Good afternoon, Mr. President, good afternoon,
8 Your Honours, and good afternoon to everyone in and around the courtroom.
9 JUDGE MOLOTO: Yes, Mr. Karnavas, Mr. -- you're coming here at
10 the invitation of the Prosecution.
11 MR. KARNAVAS: Yes.
12 JUDGE MOLOTO: The Prosecution has indicated that you have
13 something to tell the Chamber.
14 MR. KARNAVAS: Yes.
15 JUDGE MOLOTO: About your client.
16 MR. KARNAVAS: Yes. I did inform the Defence yesterday, it
17 was -- that most likely my client would not be able to testify today
18 because of him being caught in this Dutch system which nobody seemed to
19 know, at least on the Netherlands' side, you know, what to do until
20 yesterday afternoon. And because I was not able to meet with my client
21 to at least discuss his testimony and to get him mentally prepared for
22 the Court, I informed them that in all likelihood it would be on Monday.
23 Today I met with my client because we had a hearing. I've discussed the
24 matter with Mr. Kabashi about testifying. It was his wish that he meet
25 with me to discuss his testimony, particularly in light of the fact that
Page 322
1 he has these counts pending and his performance in this particular court
2 may impact how that situation will be resolved or any potential future
3 situations that may arise in this courtroom. And I did inform Mr. --
4 Judge Orie, in fact, that I would be bringing to this Trial Chamber's
5 attention the fact that he is not in the shape -- he is psychologically
6 not capable and he's physically exhausted, physically exhausted. And
7 frankly, I think it would be a miscarriage of justice to force him to
8 testify today, given that he hasn't slept in the last couple of days, he
9 hasn't had access to his lawyer, and that no one will be prejudiced if he
10 testifies on Monday.
11 I was scheduled to meet with him between 1.00 and 4.00 this
12 afternoon at the UNDU. Regrettably, that now has changed. Efforts have
13 been made by all there for me to meet with him later this evening, and
14 I'm now also making efforts to see whether the UNDU would allow me to
15 meet with him tomorrow, which is slightly unusual, but I'm hopeful that
16 between OLAD and perhaps the Trial Chamber the UNDU would allow me to
17 meet with Mr. Kabashi so that Monday morning, 9.00, he's here and he's
18 ready and able to give evidence.
19 JUDGE MOLOTO: Thank you so much, Mr. Karnavas. You may be
20 seated.
21 MR. KARNAVAS: Thank you.
22 JUDGE MOLOTO: I don't expect anybody wants to cross-examine
23 Mr. Karnavas.
24 MR. GUY-SMITH: I -- well, as a matter of fact, Your Honour ...
25 No, but I would make one brief comment, which is as follows,
Page 323
1 which is to the extent that the Chamber can be of any assistance to
2 Mr. Karnavas in terms of the relationship that he has with the Detention
3 Unit, UNDU, for a Saturday visit, I would strongly encourage that so that
4 we don't run into a problem next week of him not having had the
5 opportunity to meet with Mr. Kabashi because sometimes people are very
6 jealous about the way they treat their weekends.
7 JUDGE MOLOTO: Thank you very much for that, Mr. Guy-Smith, and
8 I'm sure Mr. Karnavas is perfectly capable to make appropriate
9 representations to any relevant authorities for further assistance if he
10 does need any. Thank you so much.
11 That's -- that being that, then I suppose we accept what has been
12 said and we'll stand adjourned to Monday - are we sitting in the morning
13 or the afternoon, in the morning at 9.00.
14 MR. ROGERS: Your Honours, before we rise there are just a few
15 small housekeeping matters that Ms. Gopalan can deal with, a number of
16 small oral applications that my learned friends have been notified we
17 would make. So perhaps she can make those and we can try to tidy away
18 some loose ends and feel we have achieved something perhaps in the course
19 of this afternoon.
20 JUDGE MOLOTO: In that event, Mr. Karnavas, you are excused.
21 MR. KARNAVAS: Thank you, Mr. President. Thank you, Your
22 Honours.
23 JUDGE MOLOTO: You're welcome.
24 Yes, Ms. Gopalan.
25 MS. GOPALAN: Good afternoon, Your Honours.
Page 324
1 JUDGE MOLOTO: Good afternoon, ma'am.
2 MS. GOPALAN: I'm here to make an oral application for the
3 admission of the evidence of three witnesses who are scheduled to testify
4 in the remaining sitting period, it's an oral application for the
5 admission of their evidence in written form into the trial record. The
6 first one is Witness 79. She's scheduled to testify sometime next week.
7 We have been in e-mail contact with the Defence and they do not require
8 her -- for her to attend for cross-examination. If Your Honours recall,
9 this witness was mentioned in your decision dated 22nd of July and you
10 had asked for her to appear for cross-examination; however, the parties
11 are in agreement that she does not require to attend for
12 cross-examination. So I ask that her written statement be entered into
13 evidence.
14 JUDGE MOLOTO: Ma'am, you said her written statement. Is it
15 92 bis? 92 ter?
16 MS. GOPALAN: It's a 92 bis statement.
17 JUDGE MOLOTO: 92 bis.
18 MS. GOPALAN: Yes.
19 JUDGE MOLOTO: Thank you so much. Can we --
20 MS. GOPALAN: I can --
21 JUDGE MOLOTO: Go ahead.
22 MS. GOPALAN: I could read out the 65 ter number, if it pleases
23 Your Honours.
24 JUDGE MOLOTO: Maybe for the Registrar's sake, yes, please go
25 ahead.
Page 325
1 MS. GOPALAN: The 65 ter number is 03042.
2 JUDGE MOLOTO: Okay. Okay.
3 MS. GOPALAN: Now, moving on to the remaining witnesses, there
4 are two of theme Mijat and Dragoslav Stojanovic. We have also been in
5 contact with the Defence about the two of them, and all three Defence
6 teams have agreed that these witnesses will not be required to attend to
7 give additional testimony. And so this is an oral application for the
8 admission of the --
9 JUDGE MOLOTO: And they are also 92 bis?
10 MS. GOPALAN: They are also 92 bis, that's right.
11 JUDGE MOLOTO: Okay. Thank you very much.
12 [Trial Chamber confers]
13 JUDGE DELVOIE: Those three witnesses, they testified in the
14 first trial I suppose?
15 MS. GOPALAN: Two of them --
16 JUDGE DELVOIE: Two of them, two of them.
17 MS. GOPALAN: Two of them did, Your Honours.
18 JUDGE DELVOIE: And did they testify -- was that a viva voce
19 testimony?
20 MS. GOPALAN: That's right.
21 JUDGE DELVOIE: And the third one?
22 MS. GOPALAN: And the third one, as I recall, there was a written
23 statement, but that was not part of the initial trial record.
24 MR. DIXON: Your Honour, I can assist, I can clarify that that
25 statement -- there was an application made under 92 bis to have it
Page 326
1 admitted, but it wasn't admitted by the previous Trial Chamber. So it
2 wasn't on the record. So as things stand we're only talking about a
3 statement for that witness. There was no testimony. And as we've
4 indicated in our e-mail, there's no objection to that statement. But
5 with regards the other two witnesses, they both did give testimony and
6 were cross-examined and there are associated exhibits with their
7 testimony as well. And there's no objection to their previous statements
8 but in addition to that their previous testimony, including the
9 cross-examination and all the associated exhibits, being admitted into
10 evidences.
11 JUDGE DELVOIE: Thank you.
12 MS. GOPALAN: Your Honours, if I may, what I was proposing to do
13 in relation to the two witnesses, Mijat and Dragoslav Stojanovic was to
14 circulate to the Defence a complete list of the testimony and the
15 associated exhibits so that the parties may -- that they may view the
16 material and then we would seek the admission of all that material into
17 evidence based on the agreement of the parties.
18 JUDGE MOLOTO: But, Madam Gopalan, if I understand Mr. Dixon
19 correctly, it looks like they've had sight of all that material, that's
20 why he's asking -- he's saying that all that material can be -- there's
21 no objection to all that material being tendered.
22 MR. DIXON: There isn't any objection, but we should just be sure
23 what material we are talking about and ensure that all the associated
24 exhibits, both as introduced by the Prosecution and the Defence are part
25 of that category of material. So if we could have an opportunity with
Page 327
1 the Prosecution just to confirm that and then that material could all be
2 conveyed to the Trial Chamber for admission by agreement.
3 JUDGE MOLOTO: Okay. It does seem as if that -- your application
4 is a little premature with respect to those two because it doesn't look
5 like they're -- the parties are at ad idem as to what actually should go
6 in just yet, not that there is an objection, but just that they want to
7 make sure. So if you can sort that out so by the time you make that
8 application you are able to tender those documents.
9 MS. GOPALAN: I'm grateful, Your Honours.
10 JUDGE MOLOTO: Thank you very much. And with respect to the
11 statement -- I recognise you, Mr. Guy-Smith.
12 MR. GUY-SMITH: Very well.
13 JUDGE MOLOTO: And with respect to the statement, the other
14 witness.
15 MS. GOPALAN: Yes.
16 JUDGE MOLOTO: That one you seek to tender it now?
17 MS. GOPALAN: I seek the admission of that statement into
18 evidence.
19 JUDGE MOLOTO: Now?
20 MS. GOPALAN: I seek to tender it now.
21 JUDGE MOLOTO: Okay. Fine.
22 With respect to that, Mr. Dixon or Mr. Emmerson, what is the
23 response to that? Can you confirm the [Overlapping speakers] --
24 MR. DIXON: As we've indicated in our previous e-mails, there's
25 no objection --
Page 328
1 JUDGE MOLOTO: Thank you.
2 MR. DIXON: -- to that statement being admitted.
3 JUDGE MOLOTO: Mr. Guy-Smith.
4 MR. GUY-SMITH: Thank you, Your Honour. With regard to the
5 statement, there's no objection to its admission. With regard to the two
6 witnesses who have testified, in terms of the body of information that is
7 going to be presented to the Chamber, I trust that information includes a
8 verbatim copy of the video testimony of their testimony so that the
9 Chamber is in a position if they wish to, to have that information
10 available for determining such things as the way they looked, how they
11 responded, since there will be issues with regard to demeanour, obviously
12 credibility and reliability of their testimony.
13 JUDGE MOLOTO: Given that the parties are going to go through
14 what has to go in, I guess you will raise that at that meeting.
15 MR. GUY-SMITH: I am, but I am putting down a marker because I --
16 it's coming up and I think it's an important thing that the Chamber has
17 in its mind.
18 JUDGE MOLOTO: Thank you very much.
19 Mr. Harvey.
20 MR. HARVEY: Your Honour, I adopt what Mr. Guy-Smith just said,
21 but in addition to that I say we have no objection, as we've already
22 indicated to the Prosecution, to the testimony of Witness 79 going in for
23 what little use it may be to the Trial Chamber because it is very
24 substantially hearsay.
25 JUDGE MOLOTO: Thank you. Thank you, Mr. Harvey.
Page 329
1 MR. HARVEY: Thank you.
2 JUDGE MOLOTO: The 65 ter number you gave, was it in respect to
3 the one statement that you want --
4 MS. GOPALAN: That's correct, Your Honours.
5 JUDGE MOLOTO: -- to tender. Okay.
6 [Trial Chamber confers]
7 JUDGE MOLOTO: Sorry about that. Okay, then the statement is
8 admitted into evidence.
9 MS. GOPALAN: Your Honours, may I request that it's admitted
10 under seal since it pertains to a protected witness.
11 JUDGE MOLOTO: Oh, it's admitted under seal.
12 Yes, ma'am.
13 [Trial Chamber and Registrar confer]
14 THE REGISTRAR: Your Honours, the statement will be Exhibit P1
15 under seal.
16 JUDGE MOLOTO: Thank you very much, ma'am.
17 MR. GUY-SMITH: Your Honour, with -- since we are early in these
18 proceedings, with regard to those exhibits that are admitted under seal,
19 where there has been some protection order which the Defence is not privy
20 to the reasons for that protection, we may at some point wish to revisit
21 whether or not it is appropriate for certain documents to be placed under
22 seal in these proceedings. And I'm raising the point now because I think
23 it's a point that's going to come up in the future again with regard to
24 other statements or other testimony that may take that same form, that
25 being the statement of somebody who is at this point been a protected
Page 330
1 witness and that protection has been given to them in the absence of the
2 Defence having information with regard to why that protection was given.
3 And by that I'm talking about the factual -- the factual information that
4 was presented to the Chamber ex parte. Once again, I'm only raising
5 it -- I'm not at this point asking that anything be done, but I'm raising
6 the issue because I think it's an issue that could become crystallised in
7 the relatively near future.
8 JUDGE MOLOTO: Noted, Mr. Guy-Smith. Thank you so much.
9 MR. GUY-SMITH: Thank you.
10 JUDGE MOLOTO: Yes, ma'am.
11 MS. GOPALAN: Just a moment, Your Honours.
12 [Prosecution counsel confer]
13 MS. GOPALAN: Your Honours, nothing more on this matter.
14 JUDGE MOLOTO: Okay.
15 MS. GOPALAN: But Mr. Rogers, however, would like to address the
16 Court.
17 JUDGE MOLOTO: Okay.
18 MR. ROGERS: Your Honours, forgive me, I'd mean to raise this
19 earlier. It's about the guide-lines that Your Honours were going to
20 issue, and it occurred to me that we didn't have a finalised version of
21 the guide-lines. And as we are approaching the first stage at which
22 cross-examination will take place, it would be helpful if the Court could
23 today issue its finalised version of the guide-lines relating to when the
24 Defence must disclose to us the documents that they intend to rely upon
25 for the purpose of cross-examination.
Page 331
1 JUDGE MOLOTO: The Chamber is acutely aware of that.
2 MR. ROGERS: I'm grateful. Thank you.
3 JUDGE MOLOTO: And is desperately trying to get it out.
4 MR. ROGERS: I'm sure it is, Your Honour. I just was conscious
5 that today was, in fact, the first day and we hadn't quite bottomed that
6 one out.
7 JUDGE MOLOTO: Sure.
8 MR. ROGERS: Thank you.
9 JUDGE MOLOTO: Thank you so much.
10 Perhaps the sooner we get out of here, the sooner it might be
11 attended to.
12 Any others, any party? Mr. Emmerson? Mr. Guy-Smith?
13 Mr. Harvey?
14 Okay. Thank you so much. Then we stand adjourned until Monday,
15 9.00, in the same courtroom.
16 --- Whereupon the hearing adjourned at 2.42 p.m.,
17 to be reconvened on Monday, the 22nd day of
18 August, 2011, at 9.00 a.m.
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