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Wednesday, 14 July 2021
[Status Conference]
[Open session]
[Accused not present]
--- Upon commencing at 3.04 p.m.
JUDGE GUILLOU: Good afternoon and welcome everyone in and
outside the courtroom.
Madam Court Officer, can you please call the case.
THE COURT OFFICER: Good afternoon, Your Honour. This is
KSC-BC-2020-07, The Specialist Prosecutor versus Hysni Gucati and
Nasim Haradinaj.
JUDGE GUILLOU: Thank you, Madam Court Officer.
Now, I would kindly ask the parties to introduce themselves,
starting with the Specialist Prosecutor's Office.
Mr. Prosecutor.
MR. PACE: Good afternoon to Your Honour and all those in the
courtroom and joining remotely. Appearing for the Specialist
Prosecutor's Office today are Alex Whiting, Deputy
Specialist Prosecutor; Matthew Halling, Associate Prosecutor;
Valeria Bolici, Prosecutor; Line Pedersen, Case and Evidence Manager;
and I am James Pace, Associate Prosecutor.
JUDGE GUILLOU: Thank you, Mr. Prosecutor.
Now, let me turn to the Defence. Starting -- I don't know if
it's with Mr. Rees or Mr. Bowden, because I think there was a problem
of connection with Mr. Rees. So Mr. Rees or Mr. Bowden, you have the
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floor.
MR. REES: [via teleconference] Your Honour, this is
Jonathan Rees. I am appearing over Zoom remotely on behalf of
Mr. Gucati. I'm assisted by Mr. Bowden, co-counsel;
Ms. Ellie Stephenson is also present to assist.
JUDGE GUILLOU: Thank you very much, Mr. Rees. I understand
that you had some last-minute changes related to the place where you
can attend this Status Conference remotely. If you have any struggle
to follow the debates or if you want me to repeat, please feel free
to intervene or to communicate with the Court Officer so that you
don't miss anything in the hearing.
MR. REES: [via teleconference] I'm very grateful for that,
Your Honour. And I'm very grateful for Your Honour allowing me to
attend without video, as it were, for this hearing in these
exceptional circumstances. I'm grateful, thank you.
JUDGE GUILLOU: You're welcome, Mr. Rees.
Now, I turn to Mr. Cadman, please.
MR. CADMAN: Good afternoon, Your Honour. Mr. Cadman appearing
for Mr. Nasim Haradinaj in person. Mr. Buckley is joining us
remotely. Mr. Buckley is Specialist Co-Counsel. And Ms. Boxberg is
with me in court, who is a legal assistant.
JUDGE GUILLOU: Thank you, Mr. Cadman.
And now let me turn to the Registry.
MR. ROCHE: Good afternoon, Your Honour. My name is
Ralph Roche, Head of Judicial Services Division in the Registry. And
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also we have Mr. Stephane Wohlfahrt, the Deputy Registrar. Thank
you.
JUDGE GUILLOU: Thank you very much, Mr. Roche. And for the
record, I am Nicolas Guillou, Pre-Trial Judge for this case.
On 9 June, I scheduled the sixth Status Conference for this
case. On 23 June, I rescheduled this hearing when I ordered the
submission of a corrected indictment following the decision of the
Court of Appeal on the preliminary motion filed by the Defence.
On 5 July, the SPO submitted the corrected indictment.
On 12 July, the Gucati and the Haradinaj Defence submitted their
respective pre-trial brief.
My goal today is to review the status of the case before the
transmission of the case file to the Trial Panel, which I set in the
order for revised calendar, for 16 July. In particular, I wish to
discuss the detention facilities, translations, disclosure, the
status of Defence investigations, and the transmission of the case
file and readiness for trial.
I thank the Haradinaj Defence for their written submissions.
And, as usual, I remind the parties should any submission require the
disclosure of confidential information, to indicate this to me so
that we can go into private or closed session.
I would like to start the hearing today with an update from the
Registry on the measures taken in relation to communication between
Defence counsel and their client in the detention facilities. I note
that despite acknowledging the steps taken by the Registry to improve
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the situation with the introduction of computer screens, the
Haradinaj Defence maintains their previous concerns raised regarding
communication between counsel and the accused.
I invite the parties to indicate if the latest measures
implemented by the Registry respond to their concerns.
And I would also like the Registry to give us the latest update
about the possibility to organise family visits given the evolution
of the COVID-19 pandemic and the evolution of the vaccination
campaign.
Mr. Roche, you have the floor.
MR. ROCHE: Thank you very much, Your Honour.
Firstly regarding the detention facilities and the ability of
counsel to meet their clients directly. Throughout the entire
pandemic, we have worked very, very closely with the Medical Officer
of the detention facilities and also with other relevant parties.
And I'm happy to say that as of 1 July visits between counsel can be
in-person, as they were, but also without any separation. So there's
no glass partition, there is no requirement for them to be physically
separate. That was as of 1 July for counsel who are fully vaccinated
and are coming from green or yellow countries. As of 15 July -
tomorrow - that relaxation will apply to all counsel, irrespective of
vaccination status or where they are travelling from.
In the meantime, of course, we have been implementing a range of
measures, such as the secure electronic data sharing scheme, putting
in extra screens, et cetera. But obviously -- and the latest
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measures, I think, will further improve the ability of counsel to
meet directly with their clients.
As regards to family visits. Due to the general improvement in
the vaccination programme and, again, closely following medical
advice, in-person family visits will commence as of tomorrow. I
understand that a number of visits have already been planned and are
expected to occur, subject to travel arrangements, over the next
couple of days. So, again, these are in-person, face-to-face family
visits.
So if Your Honour would like anymore details on any of those
issues, I can provide it.
JUDGE GUILLOU: Thank you very much, Mr. Roche.
I will now give the floor to the Defence, and especially to
indicate if they still see any problem with the evolution of the
measures as described by the Registry.
Mr. Rees, please.
MR. REES: [via teleconference] Your Honour, firstly, we're
grateful for the measures that have been introduced thus far. They
do assist. We are still looking forward to the position where we can
meet face-to-face without any physical obstruction or barrier between
counsel and lay client. We understand that that is a step that we
are rapidly moving towards, and we look forward to that.
There are measures in hand to plan for family visits. Again,
we're grateful for the cooperation there, and we look forward to
those plans coming to fruition shortly.
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There's nothing further that I wish to add specifically on this
point, Your Honour.
Thank you.
JUDGE GUILLOU: Thank you very much, Mr. Rees.
Mr. Cadman, please.
MR. CADMAN: Thank you, Your Honour.
And may I also extend my thanks to the Registry for putting the
measures in place that have made a huge difference. I can say that I
had the first visit with Mr. Haradinaj yesterday and today. I was
also graciously given a tour of the various different improvements
that they've made for both family visits and for detainee visits.
There is, of course, still a glass partition on the desk but,
obviously, we understand the reason for that. And certainly
Mr. Haradinaj is very grateful for those steps that have been taken.
It is regrettable that it's taken until now, when the case is on
the verge of being transferred to the Trial Panel, for those steps to
be implemented, but I cannot fault the Registry for what they've
done, and certainly we are very grateful for those steps that have
been taken.
The criticism that I made in the written submissions were made
prior to seeing the facilities as they are now, and that was
primarily because even with the screens, with the separated glass, it
still relied on the telephone system to be able to hear, and so it
wasn't an ideal situation. That, of course, has now been resolved.
There are two screens in the room. We can connect our devices to the
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screens, and so it is a welcome change.
The concern that we have, obviously, is not something that the
Court or the Registry can predict. Just today we were told that the
likelihood of the Netherlands going back into an orange or deep red
situation is going to have an impact, and we may well find ourselves
going back to the situation that we've been previously. Again,
that's not the fault of anyone in this building. It's just the
reality of what we have.
The family visits are incredibility important, and we are very
grateful that that's been moved forward. Mr. Haradinaj has been
detained for ten months without having any access to his family.
We would also encourage the Registry to facilitate consular
access. We are aware that the Ministry of Justice have requested
visits with detainees that have been refused for whatever reason.
These are matters that do need to be taken into account. But
certainly the situation that we have now allows for us to sit down
with documents, with videos, to take full instructions. But, of
course, as we're now going to the Trial Panel, about to go to a
Trial Panel, it's still going to take some time before we're going to
be ready for trial.
But certainly Mr. Haradinaj wants to make it clear that he is
not seeking to delay matters any further. After being detained for
ten months on matters that he does not consider are valid, he really
wants to move this forward as well. So we will continue to work with
the Registry on that.
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JUDGE GUILLOU: Thank you very much, Mr. Cadman.
Mr. Roche, do you want to say anything about the issue of
consular visits, because this is something that has been raised by
Mr. Cadman. Is there a specific point you want to mention on this
topic?
MR. ROCHE: Thank you, Your Honour.
Consular visits will be permitted in person as of -- my
understanding is tomorrow, 15 July.
JUDGE GUILLOU: Thank you, Mr. Roche.
I turn to the Prosecution. Do you want to say anything on this
topic? I guess not. Thank you, Mr. Prosecutor.
So now let us move to the second item in our agenda, which is
translations. In particular, if there are any remaining concerns of
the Defence as regard translations required by law.
I would first like to hear from the Registry, again, about the
current state of translation in this case, and if there are documents
that still need to be translated or revised. I would then like to
hear from the parties if there remain any difficulty related to
translations.
I note in that matter that the Haradinaj Defence expressed
concerns that some documents were not translated. I invite the
Haradinaj Defence to indicate if any filing or material are still to
be translated in Albanian, according to the working language decision
and my Framework Decision on Disclosure.
Mr. Roche, you have the floor.
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MR. ROCHE: Thank you very much, Your Honour.
As regards translations, there are no outstanding translations
which are required to be translated under the law. As stated at the
previous Status Conference, these were provided in full by 15 June.
A slightly revised indictment and other documents were submitted by
the SPO, and the updated translations have been provided last week.
So in terms of outstanding translations, there are no priority
translations requested by the Defence in this case. And as is the
case in all cases, all filings are automatically submitted for
translation, and that is ongoing. But in the event that a request
for a priority translation is submitted, that will be dealt with in
accordance with the appropriate policy.
Thank you, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Roche.
Let me now turn to the Defence, starting with Mr. Rees, please.
MR. REES: [via teleconference] Your Honour, I'm aware that
Mr. Cadman has drafted some detailed submissions in writing on this
very point, and I'm grateful to him for that. I will adopt his
position, and I'm grateful to him for taking the lead on this issue.
JUDGE GUILLOU: Thank you, Mr. Rees. This is noted.
Mr. Cadman, please.
MR. CADMAN: Your Honour, I don't really want to go over what's
already in those written submissions. What I would say is that there
appears to be a difference of opinion as to what is required by law
and what the accused are entitled to.
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I've made it quite clear in the written submissions that this is
an institution of the Republic of Kosovo. The accused is a citizen
of the Republic of Kosovo. He is entitled to have all material that
the Prosecution seeks to put forward in a language which he
understands.
The reference to "priority material" and what is required by the
KSC law. We do not accept that that is a sufficient basis. And,
again, we can make a filing in relation to the documents that we
consider are still outstanding that are required.
I appreciate that the translation unit is having to work on four
different cases at the moment, and there are different priorities.
That is understood. But this matter cannot possibly go forward until
those -- all of the material that is to be presented is translated
and made available to the accused in this matter.
We maintain that position, that it is not the question of a
foreign national appearing before a foreign court. It is a question
of a national appearing before a national court, even though it may
be staffed entirely by internationals. That is not Mr. Haradinaj's
concern. His concern is to be able to review all material and
provide instructions to his counsel. He's not able to do that if
he's not able to go through all the material.
I cannot summarise, as his counsel, thousands of pages of
documents to him in order to take instructions. He has to be able to
have access to all material, and this matter cannot possibly go to
trial -- cannot possibly start a trial until that is done, and we
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maintain that position.
If it assists the Registry and it assists the Court, we are more
than happy to put in a separate filing setting out all of the
material that we seek to be translated before this matter can go
forward.
JUDGE GUILLOU: Thank you, Mr. Cadman.
Just to understand exactly your point on this topic. Are you
basically telling me that you disagree with my decision, both on
working language and the Framework Decision on Disclosure, especially
paragraphs 61 to 64, in which I set all the documents that need to be
translated and I set the procedure for the Defence - or, actually,
any parties - to contest this and how it should be solved? Or are
you in agreement with this framework, and is it the execution of the
translation by the Registry that is of a concern? And if it's the
latter, what document are you referring to? Can you list -- is it
one in particular? And -- well, what is it?
Thank you.
MR. CADMAN: Well, Your Honour, as has been mentioned before,
the decision on the working language of the Court was obviously taken
before I was instructed as counsel in this matter. I understand that
that decision was made at the outset of these proceedings.
The position is that there remains documents which I'm more than
happy -- I'm not prepared to go through a long list of documents at
this stage, but I'm more than happy to put that into writing what
documents we consider, we require, we need to have translated, put
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that to the Registry. It may well be that we need to come back
before Your Honour in relation to that point.
The position is that it is not sufficient to merely focus on the
core documents that the defendant is entitled to. It is the entire
case file. It is all material that has to be translated.
JUDGE GUILLOU: Mr. Cadman, in my decision, my
Framework Decision on Disclosure, which is dated 22 January 2021 -
i.e., after you had been appointed as counsel - in paragraph 64, I
stated in this decision:
"The Defence may also request the SPO to provide Albanian
translation of specific evidence, or part thereof, other than
statements of witnesses whom the SPO intends to call to testify at
trial. When making such requests, the Defence shall indicate the
reasons why it is essential to receive these pieces of evidence in
Albanian and why the accused is not in a position to appreciate the
content of such evidence with the assistance of an interpreter and
counsel's advice. In the event of a disagreement between the Defence
and the SPO in this regard, the Defence must seize the
Pre-Trial Judge as soon as possible."
I don't think that the last Status Conference, two days before
the date I indicated I intended to transmit the case to the
Trial Panel, corresponds to "as soon as possible," so I think my
decision was pretty clear. Why haven't you asked the SPO for the
specific pieces of evidence? It could have been 1.000 pieces of
evidence, but the procedure has been set since January.
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MR. CADMAN: Your Honour, that is correct. This is not the
first time that we've raised this as an issue. This is the third
time in which it's been raised.
On the one occasion when we did inquire of the SPO as to the
translation of a document in Albanian, we were informed that that's
not their responsibility. It's not their responsibility to provide a
translation. We then took that up with the Registry. We were then
told it would take three months to get that document. Of course, it
was then accelerated. We received that document.
That is, unfortunately, the process. I appreciate that many of
these matters should have been raised before. They were not raised
before. We were not aware at that stage, and there has been
continuous disclosure as we go forward. All I can say is that if a
further filing is required to identify those that we consider are
necessary in order for this matter to go forward, then we will make
that expeditiously. And when I say "expeditiously," we will make it
before 16 July.
JUDGE GUILLOU: Yes, I think it's important that you point
exactly which document you estimate that the translation is necessary
for Mr. Haradinaj.
Mr. Prosecutor, do you have anything to say on this matter of
translation?
MR. PACE: Yes, briefly, Your Honour.
First just to clarify that the one request received was in
relation to the translation of the pre-trial brief, and our response
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was that we had no obligation to do so, knowing full well that the
Registry would be doing so. So there has been no denial of any truly
necessary documents. Other than that, we have not received requests
for translations of any other items.
I don't need to state this because we all know what has been
disclosed in this case. But we know that the bulk of the material
disclosed is actually already both in Albanian and in English;
especially, for example, the video evidence for which we have the
video evidence that contains audio in Albanian and also transcription
thereof in Albanian.
Otherwise, yes, there is a difference of opinion, it seems,
between the parties. The SPO's position is that the SPO and the
Registry are doing what is required to do according to the law and
the rules.
And the last thing I'll say is just that there should be no
delay, be it to the transfer of the case to the Trial Panel or even
to the start of the proceedings for reasons of translation when it is
clear that everything that the Defence is owed, so to speak, is being
or has already been provided to them in terms of translation.
Thank you.
JUDGE GUILLOU: Thank you, Mr. Prosecutor.
Mr. Roche, do you want to add anything on this topic? Maybe on
the request that you received from the Defence in the past month and
what has been prioritised by the Registry.
You have the floor.
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MR. ROCHE: Thank you, Your Honour.
Unless the request we received was for the pre-trial brief,
which we gave an initial indication on the likely time-scales and
then were able to deliver significantly in advance of that, primarily
due to shortened revision times, so we have ensured the priority
translation of the documents in which that was requested in respect
of, and in the event that we receive any other requests for a
prioritisation, we will, in accordance with the applicable policy,
which sets out a list of criteria, ensure that that is prioritised
against the other workload of the Language Services Unit.
Thank you.
JUDGE GUILLOU: Thank you, Mr. Roche.
Let me turn to the Defence again.
Mr. Rees, do you have anything to add on this topic?
MR. REES: [via teleconference] No, thank you, Your Honour.
JUDGE GUILLOU: And, Mr. Rees, same as I said to Mr. Cadman, if
there is any outstanding translation that you require, please do so
at the earliest opportunity so that this can be prioritised by the
Registry.
MR. REES: [via teleconference] We will do. Thank you.
JUDGE GUILLOU: Thank you, Mr. Rees.
Mr. Cadman, anything you want to add on this topic?
MR. CADMAN: Your Honour, only to say that, contrary to what the
SPO have said, we are not seeking to delay this matter going forward
on the basis of that. What we are merely seeking is, once we go to
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trial, we will require additional material that hasn't been
translated. That is the point that's being made.
JUDGE GUILLOU: Thank you, Mr. Cadman. This is noted.
Let us now move to the next topic in our agenda, which is
disclosure.
I would first like to know whether the Prosecution has
finalised, and I say "finalised" finalised, its disclosure or if
there is still evidentiary material that needs to be disclosed to the
Defence. If it is the case, I would like the SPO to explain what
material still needs to be disclosed and the reason for late
disclosure.
I would also like to hear from the Prosecution if they will
request protective measures for the witnesses who will be called to
testify in this case before the Trial Panel. This information would
be included in the Handover document.
And, finally, I would like to hear from the Defence on this
topic, especially if they face other difficulties related to the
disclosure process. And on this, I invite the Defence to focus on
the remaining difficulties, because there has been a lot of debates.
I ruled multiple times on that matter, so there is no need to recall
the procedural disclosure history but just to focus on what is still
remaining, if any.
Mr. Prosecutor, you have the floor.
MR. PACE: Thank you, Your Honour.
I'll address the protective measures requests first. And I note
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that in our pre-trial brief, we did indicate that we would file in
due course requests for protective measures in relation to the two
Prosecution witnesses, and we are further assessing that situation
and will, of course, make such a request, which I believe would also
be appropriate, before the Trial Panel.
In terms of disclosure. Since the last Status Conference, there
have been a limited number of disclosures primarily relating to items
requested by the Defence. We do not currently intend to disclose any
further information. That, obviously, depends on if anything else is
requested. However, we do not plan to do so.
I will remind Your Honour and the Defence, who already knows
this, but there is one as yet outstanding third party request. We
keep hoping to receive a response and we are currently aiming or
hoping for the end of July, and we will, of course, disclose any
information received immediately. The case still remains that we do
not anticipate that this would require any, for example, redaction or
have any 107 issues attached to it. So we are doing everything we
can but, of course, as always, we do rely to an extent on -- not to
an extent fully -- rather, on external parties.
And that's all I have for Your Honour, unless there is anything
else.
JUDGE GUILLOU: That's it. And just for the benefit of the
Defence, you are referring to the second part of the request that we
are still expecting with -- have been expecting for a couple of
weeks, if not months now, if I'm not wrong.
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Thank you very much, Mr. Prosecutor.
I turn to the Defence.
Mr. Rees, please.
MR. REES: [via teleconference] Your Honour, sadly we do foresee
continuing disclosure difficulties in this case. I will not rehearse
the chronology, because it is well known to Your Honour. But we have
little confidence that things will be plain sailing from this point
onwards.
There remains an outstanding appeal in relation to a previous
decision on disclosure that is yet to be ruled upon. Although, all
submissions from all parties are now before the Court of Appeals
Panel.
We do not -- although we do envisage ongoing disclosure
difficulties, subject to one issue which I understand Mr. Cadman
intends to raise in closed session, we do not suggest that those
ongoing disclosure difficulties should prevent the case file from
being transferred to a properly assigned Trial Panel. Any further
disclosure issues, it seems to us, are properly to be resolved by the
Trial Panel in due course.
In relation to the outstanding third party request, it would be
of some assistance if Mr. Pace gave some summary to Your Honour of
the type of material that is expected, the volume of material that is
expected. That would assist the parties in giving some planning for
the next stage going forward; namely, when the parties will be
trial-ready.
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Other than that, I have nothing further to add at this stage,
Your Honour.
JUDGE GUILLOU: Thank you, Mr. Rees. And I have noted down your
question.
But before giving the floor to the Prosecution, I turn to
Mr. Cadman first, please.
MR. CADMAN: Thank you, Your Honour.
There's not much point me setting out what Mr. Rees has already
said. We've already set out in our written submissions that we have
little or no confidence in the matter going forward without further
bumps in the road. We do fully expect there to be further bumps.
Hopefully they're not going to be of a size that will disrupt these
proceedings any further.
But I think we've -- we refer to their cavalier attitude of the
SPO in relation to their disclosure obligations, and so we do
continue to have those concerns.
There is one matter, possibly two matters, but I have agreed not
to raise it in public session. I will deal with those two matters in
closed session.
JUDGE GUILLOU: This is noted.
And if you agree, Mr. Cadman, we can do it after the last point
in the Status Conference, in the "any other business matter." And I
think you also agree that it's not in private session and in closed
session if --
MR. CADMAN: Yes. I think as I was -- I was explained the
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difference between private and closed, yes.
JUDGE GUILLOU: Exactly. Because we try to have as much
publicity as we can, and in private session we still have the public
being able to attend, and we still have the video.
MR. CADMAN: Absolutely. Absolutely, Your Honour.
JUDGE GUILLOU: If it's possible, it's always better to go to
the private session.
MR. CADMAN: The matters are not of such sensitivity that it
would require the curtains to go up, so certainly the curtains can
stay down.
JUDGE GUILLOU: Thank you, Mr. Cadman.
MR. CADMAN: Or they can go down, yes.
JUDGE GUILLOU: Let me turn to the Prosecution, if you need
to -- us to go into private session to respond, let me know. No? I
see that it's not necessary, so I give you the floor.
MR. PACE: Thank you, Your Honour.
I will just say that in terms of Mr. Rees's request to provide
information at least to the Pre-Trial Judge about the type and volume
of material to be expected, all I can say the status that the
Pre-Trial Judge is informed about the general nature of such
material.
Thank you.
JUDGE GUILLOU: Thank you very much, Mr. Prosecutor.
Mr. Rees, do you want to add anything?
MR. REES: [via teleconference] Well, in light of that unhelpful
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response, there is nothing that I can add, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Rees.
Mr. Cadman, do you want to add anything?
MR. CADMAN: Your Honour, I think the only matters that need to
be dealt with in terms of disclosure affects more from a standpoint
of the Defence investigation. So I can deal with it when we address
that point.
JUDGE GUILLOU: This is noted. Thank you.
Let me now move to the next item in our agenda, which is the
Defence investigations.
I invite the Defence to provide an update on the status of its
investigations, including the estimated overall amount and type of
evidence it intends to disclose to the SPO, and whether requests for
protective measures are envisaged. And, again, this is for the
purpose of including such information in the Handover document.
I invite the Defence for their submissions on these matters
starting with Mr. Rees, please.
MR. REES: [via teleconference] Your Honour, we have conducted
extensive Defence investigations. They are referred to in the course
of our extensive Defence pre-trial brief. We have provided, as
requested, a list of witnesses that we provisionally intend to call,
which sets out both their identities and, by topic, an indication as
to the issues to which they will -- their evidence will go.
We hope that that meets such requirements as are in place for
Defence disclosure at this stage. We are aware that when the matter
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is sent to a properly assigned Trial Panel that there is to be
further trial preparation hearings in which those matters will be
revisited and fuller details given at that stage.
There are some areas -- there are some areas in which there may
be continuing investigations. We do not envisage them delaying
matters any further. We said to Your Honour at a very early stage --
in fact, I think it was either the first or the second of the Status
Conferences, that we intended to be trial ready shortly after
30 August, and we have reached that position, as we said we would.
JUDGE GUILLOU: Thank you, Mr. Rees. And I remember very well.
I think you have been very consistent with your timelines, whether
it's for the Defence pre-trial brief or for the date of the beginning
of the trial.
Mr. Cadman, please.
MR. CADMAN: Certainly we are in agreement with Mr. Rees as far
as the timeframe is concerned. Obviously the Defence investigations
have, to a certain extent, been coordinated between both teams and
will continue to be coordinated in that fashion.
As Mr. Rees had said, there is a strong likelihood that the
investigations will continue for some time yet. There are still
lines of inquiry that we are required to pursue based on our
perception. We understand the SPO's position is not at all in
agreement, but there are certain lines of inquiry that we have to
investigate and we will continue to do so.
We have a number of requests outstanding that have recently been
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made to various different ministries and agencies in the Republic of
Kosovo that requires information that goes to one of the defences
that are set out in the pre-trial brief. We have also requested, and
will continue to pursue, cooperation -- or certainly we seek to
interview a number of individuals in the Republic of Serbia due to
their involvement in these matters. Obviously if we have no
cooperation from the Republic of Serbia, as we fully expect, due to
there effectively still being a state of war between Kosovo and
Serbia, then, we will, of course, have to come back to request
assistance.
There is also a matter that, as we will deal with in private
session, information that we will require as a result of matters that
occurred last week. But, again, we can deal with that in private
session.
We will also be looking at a number of other witnesses that may
require protective measures. At this stage, we cannot give a firm
indication as to whether those individuals will require or will
request some form of protective measures, and we'll have to come
back, potentially before the Trial Panel, to raise that at a later
stage. But I think the Court should envisage that there will be
Defence witnesses that will require some form of protective measures
going forward.
JUDGE GUILLOU: And if I may, because this would be useful for
the Trial Panel, do you foresee that -- do you foresee that it would
concern one or two witnesses? Or I think you have 20 -- I don't
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remember exactly the number on your witness list, but 20-something
witnesses. Do you foresee it for most of the witness or just for --
most of the witnesses or just for a few witnesses?
MR. CADMAN: Your Honour, despite the pre-trial brief being
filed confidentially, the names of those witnesses that have been
listed do not require protective measures. There are additional
witnesses that we were not in a position to name at this stage
because they haven't given final agreement that they are willing to
come forward and testify because they are concerned themselves of
potential repercussions from the evidence that they will give.
We will come back to the Court at the time in which we know what
the position will be. I would not imagine it to be more than --
between one and three witnesses. But as soon as we are able to
clarify that, we will.
JUDGE GUILLOU: Thank you very much. This is noted.
Let me turn to the Prosecution. Do you have anything to add on
this topic?
MR. PACE: No, thank you, Your Honour.
JUDGE GUILLOU: Thank you very much.
I would now like to move to the last item in our agenda before
the matters which we'll address in private session, which is the
transmission of the case to the Trial Panel and the readiness for the
case for trial.
I would like to know whether the parties foresee any significant
impediment to the transmission of the case file to the Trial Panel on
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Friday, 16 July. In this regard, I remind the parties that the
transmission of the case file does not automatically translate into
the opening of the case pursuant to Rule 124. Further preparatory
steps are first to be taken by the Trial Panel, as foreseen in
Rules 116 to 119.
In any event, I would like the SPO to indicate whether it
expects to be ready for the presentation of its case at trial so this
information can be included in the Handover document for the future
Trial Panel.
For the same reason, I would like the Defence to indicate when
it expects to be ready for the presentation of their respective
cases, if any.
Mr. Prosecutor, you have the floor.
MR. PACE: Thank you, Your Honour.
Turning first to the transmission of the case file to the
Trial Panel. No, we do not foresee any impediments to that taking
place on 16 July as set out by Your Honour.
We do take note of the Haradinaj Defence submissions filed, I
believe, yesterday, and that was filing F259 at paragraph 27, where
it seems that the Haradinaj Defence is saying that the case is not
ready for transfer to the Trial Panel for a number of reasons, and
our response to that is that there is no need for an order on a
corrected indictment. So that is not a valid reason to defer the
transfer.
The matter pending before the Court of Appeals is also not a
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valid reason to defer the transfer to the Panel. Any outcome thereof
can be implemented equally appropriately before the Trial Panel.
It's not clear to the SPO what specific requests the Haradinaj
Defence refers to as being outstanding with the SPO, it seems. We
have responded to all requests made. We can, of course, engage
inter partes if there is anything else.
And for those reasons, we do not see any impediment, as I said,
to the transfer taking place soon. I believe that would be on
the 16th.
In terms of when the SPO would be ready for trial as such. We
will be ready when we are asked to be ready. We do note that, of
course, a number of steps do have to take place as Your Honour noted
both in his order and then already earlier today. It's not that a
case is transferred and then a trial starts immediately. There are
requirements pursuant to the rules that have to take place, and based
on how things are going, in our experience it would seem that perhaps
the trial could start early November.
But as I said, the SPO is ready for trial when the Trial Panel
calls it to be ready.
Those are our submissions, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Prosecutor.
Now I turn to the Defence.
Mr. Rees, please.
MR. REES: [via teleconference] Your Honour, we have already said
that we see no impediment to the transfer of the file to a properly
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assigned Trial Panel, save in relation to the issue that I understand
Mr. Haradinaj's team intends to raise in private session. That is
the only impediment that I see at this stage. I will address
Your Honour in relation to that, because I am supportive of their
position, but clearly that makes little sense until Your Honour has
heard what the issue is from Mr. Haradinaj's team.
In terms of being trial-ready thereafter, subject to listing and
professional commitments, we maintain, as we have said from the
outset, that we will be ready for the trial to proceed in the early
autumn, from September onwards, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Rees. This is noted.
Mr. Cadman, please.
MR. CADMAN: Your Honour, as Mr. Pace has pointed out, there is
reference in paragraph 27 to certain issues that have been raised on
behalf of the Defence, if Your Honour sees it. It's a question of
being trial-ready.
As I said repeatedly today, Mr. Haradinaj does not want this
matter to be delayed any further. We are saying that these matters
can be transferred to the Trial Panel on the 16th as previously
indicated by Your Honour. There are certain issues that may need to
be resolved, but we're not saying that these are a sufficient basis
to delay matters any further.
The issue as far as the order on the corrected indictment is
concerned, it is raised in passing as the rules appear to be silent
on that question. And of course, the Code of Criminal Procedure of
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the Republic of Kosovo has a very, very different position. What I
was suggesting was that there has been no order or no decision by
Your Honour as to whether a further procedure is required.
We can only assume from Your Honour's silence that you do not
intend to issue any further decision or order, and it's flagged as an
issue for Your Honour to consider. But I can see by Your Honour's
reply, your silent reply, that -- what your position is.
JUDGE GUILLOU: And this is correct, Mr. Cadman.
MR. CADMAN: As far as the outstanding request, I will have to
go back to -- just to verify whether that has, in fact, been
responded to. There was a previous request containing a number of
different requests that were put to the SPO that have been replied to
in full. I accept that. There may well be additional requests that
stem from that. It may just be an oversight on my part in saying
that a further request will be made rather than a further request has
been made.
JUDGE GUILLOU: Thank you, Mr. Cadman.
MR. REES: [via teleconference] Your Honour, sorry --
JUDGE GUILLOU: Mr. Rees, you want to add something?
MR. REES: [via teleconference] I do. Only to clarify one
matter.
We, of course, acknowledge that the SPO has served a proposed
corrected indictment. We take the view that whether that indictment
is sufficient in its present form is a matter that should be reserved
to the Trial Panel, and we therefore reserve the right to raise any
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further issue about whether the current proposed corrected indictment
meets the decision handed down by the Court of Appeals Panel.
We do not raise that as any impediment for the file to be
transferred to a properly assigned Trial Panel, but I wish to make it
clear that our silence in relation to that document at this stage,
when we have been otherwise preoccupied with completing our pre-trial
Defence brief and dealing with the ongoing appeal on disclosure, our
silence on their submitted proposed corrected indictment does not
mean that we accede to the submission that that meets the Court of
Appeal's decision. We will review it and, in due course -- and if
there is an issue, we will raise it before the Trial Panel.
JUDGE GUILLOU: Thank you, Mr. Rees. This is noted.
Mr. Cadman, do you want to adopt the same position?
MR. CADMAN: It is adopted in that way.
JUDGE GUILLOU: Thank you very much.
Let me turn to the Prosecution. Do you want to respond to any
points that have been mentioned by the Defence?
MR. PACE: Merely to inform the Court, Your Honour, that when we
did provide a corrected version of the indictment, we also provided
an inter partes communication with a tracked version thereof which
will significantly facilitate any review the Defence intends to
undertake in relation to the corrections.
Thank you.
JUDGE GUILLOU: Thank you very much.
I don't see anyone asking the floor on this topic. So at this
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point, I would like to ask the parties whether they have any other
issues they would like to raise.
I note that the Haradinaj Defence indicated that it intended to
raise two issues in closed and probably private session.
Before we hear these issues, do any of the parties have any
other issues they would like to raise?
Mr. Prosecutor.
MR. PACE: Thank you, Your Honour. The only issue I would like
to raise relates to the matter of agreed facts.
As Your Honour well knows, the Defence, in their pre-trial
brief, either annexed thereto or therein, included notes in relation
to the facts agreed upon. And the SPO is ready to either, if the
Pre-Trial Judge prefers, file information before the Pre-Trial Judge
concerning that agreement; or if the Pre-Trial Judge so indicates, it
can also be filed before the Trial Panel.
And I say this mostly because although while the Haradinaj
Defence team listed the facts agreed to, the Gucati Defence listed
only by reference to numbers, and the Pre-Trial Panel is not in
possession of the inter partes communication, so the Judge does not
know what has been agreed to.
But like I said, we are happy, if so ordered, to file this
tomorrow before you, or it can wait for the Trial Panel. As
Your Honour would like.
Thank you.
JUDGE GUILLOU: Let me turn to the Defence on this.
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Do the Defence have any opposition to a filing by the SPO
tomorrow on this point?
And I turn to Mr. Bowden first, because I think Mr. Rees is not
connected anymore.
Mr. Bowden, please.
MR. BOWDEN: No, Your Honour. I think he may have had some
difficulties with his source; namely, his phone, I'm afraid. There
would be no objections to the Prosecution's position, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Bowden.
Mr. Cadman, please.
MR. CADMAN: No objection at all, Your Honour.
JUDGE GUILLOU: Thank you very much, Mr. Cadman.
Then, Mr. Pace, it would be fantastic if you could file it
before -- is it too much to ask you before 4.00 p.m. tomorrow so it
can be distributed tomorrow afternoon?
MR. PACE: Not a problem, Your Honour. Thank you.
JUDGE GUILLOU: Thank you very much.
We are now going to move in private session.
And I just want to check Mr. -- Mr. Rees is not connected
anymore, correct? So we don't have any problem to move into private
session.
Madam Court Officer, can you let me know when we are in private
session.
[Private session]
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[Open session]
THE COURT OFFICER: Your Honour, we are back in open session.
JUDGE GUILLOU: And I see that Mr. Rees is connected again.
So --
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MR. REES: [via teleconference] Your Honour --
JUDGE GUILLOU: -- before we end this hearing, are there any
other matters that any party would like to raise?
Mr. Prosecutor?
Mr. Bowden, because I think Mr. Rees is disconnected again.
Mr. Bowden, any other matter?
MR. BOWDEN: No, thank you, Your Honour.
JUDGE GUILLOU: Mr. Cadman?
MR. CADMAN: Just one point, Your Honour.
We are concerned as to this case being conducted, more or less,
behind closed doors. As we know, an application has been made, or
will be made, for the Prosecution evidence to be entirely behind
closed doors. We are also concerned by the matters that have been
raised in private session that will impact upon the fairness of these
proceedings.
As a result of that, and it is not without precedent, we will be
requesting that the OSCE, or a similarly placed body, conduct an
effective and independent monitoring of the trial proceedings,
because we are concerned as to how these matters are going forward.
That is the only point I wanted to raise, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Cadman.
I note today that you wanted to be in closed session, and I'm
the one who invited you to accept a private session so publicity can
be preserved as much as we can.
MR. CADMAN: Absolutely, Your Honour. And you're correct. And
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KSC-BC-2020-07 14 July 2021
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I have also been reminded of that fact by the Court of Appeals Panel.
There will be matters that need to be dealt with in closed session.
The entirety of the trial is not a matter that needs to be dealt with
in closed session.
JUDGE GUILLOU: Thank you, Mr. Cadman.
I see that Mr. Pace wants to take the floor.
MR. PACE: Thank you, Your Honour.
Merely to note that I don't understand where the suggestion of
the entire proceedings being conducted behind closed doors comes
from.
Even if the two Prosecution witnesses were to be granted
protective measures, protective measures don't mean that a trial is
held behind closed doors. It would mean that, perhaps, their
identity is not known, their specific names are not known to the
public. However, there is much which can certainly be said in
public, and we look forward to that aspect, and it's an aspect, of
course, which we believe in and is fundamental to the trial.
And I would also note that when it comes to, for example,
filings, whenever there has been a request to reclassify into public
or otherwise, we have made our submissions and we have done what has
been required of us. So we are certainly very much in favour of this
very important principle.
Thank you, Your Honour.
JUDGE GUILLOU: Thank you, Mr. Prosecutor. I don't see anyone
requesting the floor.
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Then I inform the parties that I intend to transfer the case to
the Trial Panel on Friday, 16 July, as indicated earlier. And in
this regard, I also notify the parties that an order for
reclassifications and public redacted versions will be issued on
Friday.
This concludes today's hearing. I thank the parties and the
Registry for their attendance, and I would like to thank the
interpreters, stenographer, audio-visual technicians, and security
personnel for their constant assistance throughout this case.
The hearing is adjourned.
--- Whereupon the Status Conference adjourned at 4.10 p.m.
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