The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • The Special Court for Sierra Leone is sitting in an open session in the case of the Prosecutor versus Charles Ghankay Taylor, Justice Teresa Doherty presiding.

  • Good morning. I note some changes of appearances. Ms Hollis?

  • Good morning, Madam President, your Honours. Brenda J Hollis, Nicholas Koumjian, Alain Werner and Leigh Lawrie appear today for the Prosecution.

  • Thank you. Mr Griffiths?

  • Good morning, Madam President, your Honours. Courtenay Griffiths, Terry Munyard and Morris Anyah appear for the Defence today.

  • Thank you, Mr Griffiths, and welcome back.

    Ms Hollis, I note there is no witness in the witness box.

  • Yes, Madam President. With leave of the Court, I will make the application concerning the testimony of this witness. It has been alluded to and discussed previously. The application is quite simply that, in order to finish the witness this week, limits be placed by the Trial Chamber on the examination of the witness.

    And just to recap the situation that brings us to that request, after the decision was made that closed session would not be allowed for this witness we did discuss that decision and possibilities for testifying with the witness. He indicated that he required certain security measures in place for his family before he would be willing to risk coming into open court and testifying in open court. We notified the Prosecutor of this request by the witness and the Prosecutor worked diligently to put such measures in place. These measures are carried out by individuals not under our control, and our understanding today is that these measures are for a limited period of time only. The agreement that is currently in place would cover these measures for this week and for a certain short period of time upon the witness's return to his home.

    It is in light of these circumstances that the Prosecution request that this Trial Chamber exercise its sound discretion and order that examination - the examination be limited in the following manner. That the Prosecution conduct the direct examination of the witness today (Wednesday) and that the Defence conduct cross-examination tomorrow (Thursday) and Friday. Should the Chamber elect to sit for a full day Friday, that would allow the Defence two full days for cross-examination. Under the current schedule, that would allow the Defence one and one-half days for cross-examination.

    In terms of the Trial Chamber's ability and discretion to limit examination of witnesses the Prosecution's position is the same as it was when we filed our motion for guidelines for conduct of the trial on 22 May 2007, and in that, a request regarding length of cross-examination, we requested a guideline that absent a showing of good cause cross-examination would not exceed the time allotted for examination-in-chief and pointed to jurisprudence from the ICTY that in large part limited cross-examination to 60 per cent of the time allotted for the examination-in-chief.

    Yesterday to assist the Trial Chamber with this issue, the Prosecution reminded them of this pleading simply so that they could look at the authorities which were cited. Now we do have today for the assistance of the Chamber copies of the authorities that were cited and, in addition, a case of Delic which is a 2007 ICTY case as well. So, if it would be of assistance, I do have copies if the Court Manager could assist us.

  • I would be most grateful for that.

  • We have also included the original motion and this Trial Chamber's decision. There is a copy for the Defence as well of all of this and perhaps I could proceed. I don't intend to cite extensively from them.

  • Yes, please continue.

  • When we did refer the Trial Chamber to the motion yesterday, Defence counsel reminded the Court that it did render a decision on that motion and perhaps it is helpful to look again at that decision. And on the second page of that decision the Court stated:

    "Considering that the proposed guidelines reflect well-established principles already laid down in the Statute, Rules and case-law of the international criminal tribunals and that the Rules are intended to be flexible in order to enable the Trial Chambers to interpret them in the fairest manner in the specific circumstances at issue ...", the Trial Chamber holds the proposed guidelines are unnecessary (not that they were incorrect, but unnecessary) and that they could fetter the Trial Chamber's discretionary powers.

    The Prosecution refers to that decision and the other authority for a very simple premise, and that is when we realise that the rights afforded the accused are the same in the Special Court and the ad hoc tribunals the jurisprudence makes clear that the right of cross-examination is not an unlimited right. It also makes clear that limitations may be placed on cross-examination and those limitations applied to the accused and that does not deprive the accused of a fair trial. Obviously discretion lies with the Trial Chamber to determine what is required in fairness, but it cannot be said as an absolute that there cannot be limitations on cross-examination.

    Now very simply with that in mind what we suggest is that we have a situation where the witness may not be available after this week through a confluence of circumstances, that the proposal of the Prosecution would allow the Defence twice the time, or one-and-a-half times the time, for their cross-examination that we take for direct, that the jurisprudence and guidelines developed at the ICTY in general limit the Defence to no more than the same time for direct examination and in many instances only 60 per cent of that time.

    Now, we realise that of course there can be a showing of good cause to allow for additional time. We believe in the circumstances that it would be fair and that it would not violate the rights of this accused if the Trial Chamber were to limit the examination in the way that the Prosecution has proposed and that is what we request.

  • Thank you, Ms Hollis. Mr Griffiths, your response.

  • Your Honour, yes. Your Honour, can I begin by making two general observations. The first is that in all courtroom situations it is presumed that the tribunal and not the parties have control over the conduct of the proceedings, and in our submission the Prosecution cannot dictate to either the tribunal or the opposing party how the proceedings should be run.

    The second general observation I would make is this. I have as lead counsel for this defendant a duty - a professional duty - towards him, and in our submission I would be in breach of that professional duty to my lay client if I were in advance of hearing the evidence of the witness to impose a constraint, or have a constraint put upon me, as to what issues and for what length of time I can pursue issues which I consider relevant to the proper defence of this accused man.

    Now bearing those two principles in mind, your Honours, in our submission the following statutory provisions and rules of procedure of the Special Court for Sierra Leone impinge upon this particular decision.

    Firstly Article 7, which as a minimum guarantee establishes that the accused is entitled to examine or have examined the witnesses against him.

    Secondly, your Honours, you should bear in mind the provisions of Rule 27 bis which where relevant provides:

    "The Trial Chamber ... shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules ..." (then with this important caveat) "... with full respect for the rights of the ..." --

  • Just pause please, Mr Griffiths. I think you were referring to Article 17.

  • Ah. I heard "7" and so did the record, but in any event please continue.

  • [Microphone not activated] on, your Honour, to refer to Rule 92 bis.

  • Rule 26. 26, I am sorry, it is my fault.

  • [Microphone not activated].

  • [Microphone not activated].

  • It is 26 bis, your Honours, which where relevant provides that:

    "The Trial Chamber ... shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses".

    We are equally aware of the provisions, your Honour, of Rule 54, which does provide this tribunal with a power to issue orders as may be necessary for the conduct of the trial. We appreciate that such a discretion exists.

    But equally - and equally we bear in mind the provisions of Rule 75(A) which again where relevant provides that a Chamber may:

    "... order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused."

    Furthermore, rule 85(B) where relevant provides that."

    "Examination-in-chief, cross-examination and re-examination shall be allowed in each case".

    We note in passing the absence of any reference in that provision to the imposition of limitations on the time or scope of cross-examination.

    We bear in mind further rule 89(B), which again where relevant provides:

    "In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law."

    And the final provision to which I refer your Honours is rule 90(F), which again where relevant provides that:

    "The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to:

    (i) Make the interrogation and presentation effective for the ascertainment of the truth; and.

    (ii) Avoid the wasting of time".

    Again, we note the absence of any reference in that provision to the imposition of limitations on time or scope of cross-examination.

    Now bearing in mind those provisions, your Honour, we submit that the following arguments are important. On 21 February of this year you, Madam President, stated during the course of the proceedings that, "The first interest of this Court is in proper justice and a fair trial. Efficiency comes after that", and so we would submit that in the context of the Prosecution's application for time limits on cross-examination the Chamber's focus should remain on concepts of justice and fairness, rather than expediency or efficiency.

  • I will just remark, without resiling from what I said, that that was an extemporary remark in the light of something that had been said.

  • Madam President, we appreciate that.

    Furthermore, your Honours, this Chamber has previously considered this issue, and indeed the Prosecution have reminded us of the decision made by this Chamber on their motion dated 22 May 2007, and we would submit that it would be quite wrong for this Chamber to go behind the reasoning which led to the decision on that motion back in the summer of 2007.

    Now when saying all of that, your Honours, we understand on this side of the courtroom the Prosecution's concern for witness safety and protection. However we note that neither rule 34 nor rule 75(A) allows a concern for witness protection to infringe on the accused's right to a fair trial, which necessarily we submit includes the right to full cross-examination of any witness brought to testify against him.

    Because we submit that the right to examine witnesses includes the right to put the accused's case to a witness for comment, because we submit that the rights of the accused are paramount and indeed should take precedence over those of witnesses or victims.

    We refer, for example, as legal support for that proposition, to a decision made in the ICTY Prosecutor v Brdjanin, dated 8 November 2000, in which it was said that:

    "The Tribunal's Statute makes the rights of the accused the first consideration and the need to protect victims and witnesses the secondary consideration."

    We submit, your Honours, that following rule 90(F) the only instances where time limits should be imposed on cross-examination are where a party is wasting the Court's time by for example the asking of irrelevant or intimidatory or harassing questions, but I would assume given this Court's experience that this Court would not allow such behaviour in any event. Indeed, we accept our professional responsibilities in that regard and I hope it cannot be said that hitherto we have engaged in any form of time wasting by asking irrelevant or unnecessary questions.

    Your Honour, I don't think I can assist your Honours any further unless there is a particular matter upon which you would like my assistance.

  • Thank you, Mr Griffiths.

  • I am sorry, your Honour.

  • -- just to cap off what you have said, I am taking it then that it is the Defence position that the Prosecution can limit its examination-in-chief to one day if it sees fit to do so, but you are making no application in that regard. You are leaving that entirely to the Prosecution. But what you are saying is, while the Defence might be able to finish by Friday, you object to any limitation that you must do so. Is that correct?

  • I could not have articulated it any better, your Honour.

  • [Microphone not activated].

  • My question goes to Ms Hollis. Ms Hollis, why do you find it necessary - if the Prosecution has the discretion to cut down on its own exam-in-chief, why do you find it necessary to apply to the Court for us to limit your exam-in-chief? That is the first question. The other question relates to the estimated time of Witness 399, I think? 339?

  • 399.

  • 399. The time limit that you filed a few days ago indicating that the testimony would last - the testimony in-chief I think would last 16 hours and you are now suggesting to limit that to five hours.

  • Five-and-a-half hours.

  • Five-and-a-half, which you are entitled to do, I am sure, and for which in my estimation you don't need a Court Order to tell you to do that.

  • But perhaps you could respond to --

  • You could respond to the Defence.

  • Yes, thank you. First of all, of course if we choose to have a witness testify three hours, or two hours, we don't need to request that. We ask for limits on the overall examination to ensure that the Prosecution would not take advantage of a situation, so in fairness we said if you order one day for us then the rest of the time is for the Defence. That would be one-and-a-half days, or two days depending on how long we sat on Friday. That is the only reason we included our examination. Of course, we can limit it as we choose.

    In terms of the Defence argument we would point out that in the Brdjanin case cited by the Defence the Trial Chamber did state that the balancing exercise required was between the rights of the accused and the rights of victims and witnesses, and as we pointed out earlier the limitations that were imposed in the ICTY have been found not to be a violation of the accused's rights in any way and those are the same rights he has in this Court.

    The Prosecution would never dictate the proceedings to the Judges, that is why this is an application and so of course we are not trying to control the proceedings, but any party may request relief it believes appropriate for its case.

    In terms of the rules cited by the Defence as not making reference to limitations on cross-examination, if you look at those rules they don't make any reference that there may not be such a limitation either.

    We certainly endorse that the first and foremost obligation of a Trial Chamber is to ensure proper justice and a fair trial and that efficiency is secondary. We are not asking this relief for purposes of efficiency. This witness may not return because of security issues. Our indication at this point is that it would be likely he would not return. So, we are not talking about efficiency. We are talking about fairness and justice. And fairness and justice have a home on both sides of this courtroom, not just one, and the Prosecution has a right to present its case.

    Your decision about our protective measures, the reason that - excuse me, our motion on guidelines, the reason that we read it to you is that should you impose limitations today you would not be going behind your decision, because your decision was in part:

    "Considering that ... the Rules are intended to be flexible in order to enable the Trial Chambers to interpret them in the fairest manner in the specific circumstances at issue".

    It is the specific circumstances at issue today that brings us to this application. We believe that it is within your Honour's sound discretion to make the decision we have asked you to make and, of course, we rely upon your sound discretion in deciding our application. Thank you.

  • Thank you, Ms Hollis. I have no questions of either party. We will retire to consider the submissions and review the rules, etc. put before us and we will reconvene at 10-past-10. Please adjourn the Court temporarily.

  • [Break taken at 10.00 a.m.]

  • [Upon resuming at 10.28 a.m.]

  • Our apologies. It took us a little longer than we anticipated.

    This is a ruling on an application. We have considered the submissions of the parties. We bear in mind the rules and precedents cited, although we note that some rules relied upon in those precedents are not on all fours with our rules. We bear in mind the fundamental obligation is a fair trial, and we bear in mind the provisions of Rule 17(e) of the Statute which provide the right of the accused to:

    "... examine, or have examined, the witnesses against him or her and to the obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

    The accused has not heard the evidence of the prospective witness and we consider that and hold that in this particular application it is not in the interests of justice to limit cross-examination in the way the Prosecution has applied for. The Prosecution is at liberty to limit its examination-in-chief as it sees fit, but we refuse the application to limit the time for cross-examination. That is the ruling.

    Ms Hollis - oh, Mr Koumjian, please proceed.

  • Your Honour, we call Witness 399.

  • Thank you. Madam Court Attendant, please assist and bring in the witness.

    Mr Koumjian, I forgot to ask the language of the witness.

  • Your Honour, the language is Liberian English.

  • Your Honour, there are some protective measures in place and we move at this time to rescind those on the basis, as we have explained to the Court, that the witness is satisfied with current security measures and is willing to testify openly at this time.

  • Mr Griffiths, you have heard the application to rescind.

  • We agree, your Honour.

  • Very well, that will be implemented.

    Mr Interpreter, do we have the proper relevant interpreter in place, please?

  • Mr Interpreter, have we got a Liberian English interpreter in place?

  • Mr Koumjian, perhaps for the record you could state the pseudonym of this witness. Nowhere have we stated the pseudonym yet for the record.

  • Your Honour, I thought I did indicate that we called Witness 399. TF1-399. I am sorry, I didn't use the TF. TF1-399.