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Kosovo Specialist Chambers - Basic Court

Status Conference (Open Session)

KSC-BC-2020-07 14 July 2021

Page 350

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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

52

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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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.


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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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.


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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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.


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.


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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KSC-BC-2020-07 14 July 2021

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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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KSC-BC-2020-07 14 July 2021

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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.


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.


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.


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.


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.


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.


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.


Mr. Cadman, do you want to adopt the same position?

MR. CADMAN: It is adopted in that way.


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.


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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Status Conference (Private Session)

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Page 380

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.


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]

[Private session text removed]

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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.


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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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.


I see that Mr. Pace wants to take the floor.


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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