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

  • [The accused not present]

  • [Upon commencing at 2.18 p.m.]

  • Good afternoon. We have the appearances noted by the Prosecution as Brenda J Hollis, Chris Santora and Kirsten Keith. I gather it's Mr Khan for the accused.

  • It is, Your Honour.

  • I think the first thing, Mr Khan, is do we proceed today or do you lack instructions from your client?

  • Well, Your Honour, firstly thank you to you and your colleagues for listing this matter for the status conference. Of course, due to no fault of the Trial Chamber, the accused of course is in The Hague without his lawyer, but, far more importantly , without his family. I will come back to that in a moment.

    But, Your Honour, under Rule 65, of course, in listing the status conference, the Trial Chamber is obligated to review the status of the case and also to allow the accused an opportunity to raise matters in relation to the case. Your Honour, it is my intention, with your leave --

  • That is Rule 65 bis.

  • Yes, indeed, Your Honour. Your Honour, it is my intention, with your leave, to make a few preliminary observations and then to deal with the issue of the matters listed in the agenda for the status conference today. Your Honour, the difficulty today with the absence of the accused of course is well known. It precipitated from the decision of the President to transfer Mr Taylor to The Hague.

    Now, Your Honour, you and your colleagues are of course familiar with the urgent defence motion to be heard, and that was dismissed of course as seeking to declaratory or prospective relief and it was held inter alia that the request that President Fernando, as he then was, was part of the administrative and diplomatic functions of the President.

    Your Honour, the observations I have are these: Of course the politicians have had a right to be heard on this matter in that the Security Council, in the nine-minute meeting a few days ago, issued Resolution 1688. The Defence have not been heard on that matter. Your Honour, regardless of the merits of location, and of course the Defence have not stated any submissions on that point, the decision of the Appeals Chamber, in my respectful submission, made it quite clear that once a decision was issued of course the full panoply of legal safeguards would be put in place. Notwithstanding that, and to take implied in the Appeals Chamber decision, the very day after the President's decision the accused was whisked away to The Hague. And so, in fact, as a matter of legal principle, any observations that the Defence may have wished to make on the issue of venue have been rendered moot by the administrative or diplomatic functions that have taken place thus far. In my respectful submission, the Special Court has with regret lost an important opportunity to define the administrative and diplomatic functions of the President and, in doing so, lost the opportunity to contribute to international procedural law.

    As far as legal safeguards are concerned, it cannot be right that any decisions of a President are unimpeachable, that they are without challenge, judicial review of course.

  • [cT21JUN06A - EKD]

  • [Status Conference]

  • [Open session]

  • Obviously you have a right to make those submissions , Mr Khan, but is this the right tribunal?

  • Your Honour, for the reason I will give at the end, in my submission it is all part of the background tapestry which, in my respectful submission, Your Honours must be alive to in deciding how this case proceeds from here on in.

    Your Honour, there are safeguards. Rule 23 of the Court's Rules of Procedure and Evidence mandate that the President shall consult the Council of Judges on all major questions or matters relating to the functions of the Special Court. I will pause while you get that to hand.

    Your Honour, the transfer of this case to The Hague must be one of the major questions relating to the functions of the Special Court and yet it is extremely notable that in the President's decision of 19th June no reference at all is made to that legal safeguard regarding the scrutiny of the President's functions. This comes to my principal concern that in areas of ambiguity or legal uncertainty regarding the scope of rules or procedures, transparency is the safeguard that must be adhered to to ensure due process rights. Backdoor, backroom communications , ex parte communications or extra-judicial liaisons are inimical to the proper administration of justice.

    Your Honour, this led, in my respectful submission, to the rather unedifying legal possibility of a clash between the diplomatic or administrative functions of the President on the one hand and the legal powers and responsibilities of Your Honours who are charged under the Statute in a fulfillment of your oaths to ensure a fair trial. Your Honour, in my submission, where there is a clash between legal powers and responsibilities and administrative and diplomatic functions, there is only one winner. Legal duties must trump.

    Your Honour, the law of course protects us all - the victims, the parties, the judges and the administration of justice - and none of these principles, in my submission, can safely be sacrificed on the alter of political expediency. The fact that an airplane was available by donor states really should not offset an order of the Court that an accused be brought before it.

    In my respectful submission, Your Honours' order of 9th June 2006 listing this case for hearing was not a purely administrative function, implied within it was an order of habeas corpus. Your right, as safe guardians of justice to bring the accused before you to inquire not just regarding the preparedness of the parties for trial, but to make inquiry as to his state, his health, his conditions of detention, and, in any national system, if any individual, whether it be a Home Secretary, a Secretary of State, sought to supplant a matter which was sub judice, a matter which was within the province of a judicial body, it would be akin to contempt of court. Of course, Rule 77 is there.

    Your Honour, this is unedifying and it is unnecessary, and it all goes down to the willingness , unfortunately , in my respectful submission, to depart from principle and the clarity of legal rules for achieving an end regardless of the validity of the route by which that end is to be attained.

  • Your Honours, would learned attorney go a little bit slower so as to allow the interpreter to keep up with him. We are interpreting for the records.

  • If you just pause there, Mr Khan. The interpreter is interpreting this for the record.

  • I'm grateful. I apologise for that.

  • Mr Interpreter , have you caught up now?

  • Yes, Your Honour. Thank you.

  • Your Honour, I am rushing. I don't want to outstay my welcome. I will be brief.

    The fact that this matter, in my respectful submission, has been very poorly handled from a legal point of view as far as adherence to legal principle is demonstrated --

  • I hope you're not referring to our Trial Chamber.

  • Your Honour, none of this is the fault of your Trial Chamber. Your Honour, there is no complaint at all regarding the conduct of you and your colleagues. These are matters that are within the purview of this rather twilight zone that has been characterised as administrative and diplomatic functions of the President, whatever that may mean.

    This is part of the morass and rather confused responsibilities , one may say, of the Registry. Your Honour, the fact that an accused has been moved precipitously , perhaps because of political or state concerns, is evidenced by the fact that I have not been contacted by anybody from the Registry or from the Court to be even told that my client has arrived safely in The Hague.

    Your Honour, yesterday I was spoken to by a member of Mr Taylor's family and they asked me whether or not the accused has arrived. I said I don't know, and I turned on the television and I saw my client getting off an airplane from CNN and BBC World Service. Their services are greatly appreciated , but, Your Honour, I should not have to rely upon the international media to inform me of my client's whereabouts .

    Your Honour, the accused, at his own expense - from the family expense - had arranged for his wife and his sisters and brother-in-law to come to Sierra Leone. He was given no warning of the movement. They are here in this country. They do not have visas for the Netherlands . There is no Dutch embassy in Freetown. There is no Dutch embassy in Liberia. The closest embassies are in Accra and Dakar. There is no procedure in place -- the Registry does not know the route by which visas are to be obtained. It cannot be right that because of backroom discussions and this holy grail of security concerns, which is untried, untested in any judicial body, that an accused can be deprived of the support and solace of his family, an accused, of course, that is declared innocent at this moment in time.

    Your Honour, the Registry and this Court had three months, the Special Court, three months to put the procedures in place since President Fernando, as he then was, requested that this case be transferred to The Hague. Your Honour, not only are no visas available, not only have I not been told my client has arrived, I have not been able to speak to my client. Nothing could be more serious, in my respectful submission, to the administration of justice than an accused who is whisked away and held, in effect, de facto incommunicado .

    Your Honour, I left a message today after ringing around as an investigator , some kind of Sherlock Holmes, trying to find a relevant phone number. I left a message finally with the head of the ICC detention facility; he wasn't available. I then, with various assistance, got the number of a member of the Court Management staff, who I won't name, who happens to be in The Hague. I said I need to speak to my client so I could inform Your Honours as to the state of play for today's hearing. None of us, of course, wish to waste Your Honours' time or Court costs. I was told something extremely remarkable, in my submission. I was told that my client was not allowed to receive telephone calls.

    Your Honour, all of these procedures should have been put in place by the Registry before the transfer of my client. That it was not done so is as startling as it is lamentable. I do ask you and Your Honours in the discharge of your obligations to make the necessary orders regarding the procedures that should be put in place.

    Your Honour, individuals on a personal level may have difficulties . Of course, one may sympathise with them. But the bottom line is those difficulties are of no legal consequence to the rights of an accused. Your Honour, I would be grateful if you and Your Honours could give the appropriate directions, consistent, in fact, with the Security Council Resolution, that visas be issued to those members of the family that already have security clearance here in Freetown, without delay, so Mr Taylor may meet them.

    Your Honour, I would be grateful if directions can be given by Your Honours, irrespective of the Registrar's decision, that the Rules of the ICC should apply mutatis mutandis that the accused, Mr Taylor, be allowed to receive calls and make calls in precisely the same way that he was allowed to make and receive calls here in Freetown.

    Your Honour, my initial motion on venue started, of course -- or mentioned one aspect of discrimination. It cannot be right with all the accused here, from all three trials under way, are permitted to make and receive phone calls and yet, from what I'm told, my client is not. Your Honour, I would ask very seriously that you and your colleagues make those orders to ensure the proper administration of justice.

    Therefore, rather belatedly --

  • Mr Khan, I am sorry to interrupt. I think this is the appropriate place to mention this. Have you read the Special Court Rules of Detention?

  • Yes, of course, Your Honour.

  • You will know that the Chief of Detention, acting under the supervision of the Registrar, has control of matters such as telephone calls, et cetera, and that if there is any complaint about the administration of these rules of detention, then the overseer, of the Registrar, is not this Trial Chamber, it is the President.

  • I am just wondering what jurisdiction you're referring to that would allow us to order that telephone calls be received by the accused.

  • Your Honour, you have an inherent power, of course, under Article 17, which was, in fact, alluded to by the Appeals Chamber, to ensure the rights of the accused. One of those rights, in my submission, is not to be discriminated against absent particular features from other accused individuals before the Court; similar individuals should be treated in a similar fashion. Of course, the responsibility lies for these matters with the Registry, but you do have a supervising role.

  • You will recall you made a similar submission in your change of venue motion that the accused was being discriminated against and that was referred to the Appeals Chamber. I don't think there was any ruling one way or the other.

  • Your Honour is right. There was no consideration at all on the merits. If one can characterise it respectively , with greatest respect, it was very much a holding decision predicated on the finding that it was premature because no decision had been made. That is my reading of that decision.

    If Your Honour could bear with me for one moment. Under the endorsement pursuant to Rule 64, of course, it has been decided that the detention facilities are going to be run by the Chief of Detention of the ICC on a day-to-day basis. Your Honour, these matters happened extremely quickly. I will, of course, make the necessary contact with the Registry and also with the head of detention unit.

    Your Honour, I don't need to belabour the point. My final submission, which, perhaps, has taken a little too long, is: for all those reasons, it is not possible for me to proceed to the merits or the substance of today's status conference. I would ask that in addition to the relief already requested, Your Honours schedule, in due course, a status conference in The Hague when you and Your Honours can attend The Hague and hold a proper functioning status hearing.

    Your Honour, I am most grateful for the indulgence that I've been granted.

  • Mr Khan, before you sit down, you have sought an order from the Court asking for visas to be issued without delay. Could you address on the powers of the Court to issue such directives to a foreign power.

  • I'm sorry, I missed the first part of that in relation to a foreign power.

  • I am seeking a submission on the power of the Court to direct a foreign power to issue visas without delay. I note the wording of your first application .

  • Your Honour, I won't go into the equivalent of Rule 54. What I intended, in fact, and it must be my error of speech, is that an order be made by you to the Registry to direct the Registry to take all necessary steps to ensure that the visas of the family members of Mr Taylor are facilitated without any further delay. Your Honour, I do apologise if I wasn't clear.

  • Thank you, Mr Khan.

  • You are relying on the Court's powers under Rule 54 to issue that direction?

  • And your inherent powers under Article 17 to ensure a fair trial, of course, and fair proceedings. All of these matters go back to Article 17. I have been reminded by Principal Defender, and I'm grateful - perhaps I didn't mention it - it goes back to the Security Council Resolution as well. Unless I can assist further, those are my submissions .

  • Thank you, Mr Khan. Do Prosecution wish to reply?

  • Thank you, Your Honour. Very briefly.

    In regard to many of the comments made by defence counsel regarding the authority of the President to change the venue of this trial and, as a necessary part of that, to order the transfer of the accused to The Hague, we suggest that those matters have been resolved by the Appeals Chamber in its decision, and that any arguments defence counsel wish to submit to that Chamber, they have the right to do so. We suggest they cannot relitigate those matters before the Trial Chamber which have been determined by the Appeals Chamber. In regard to the points made by defence counsel regarding this transfer yesterday, and the consequences of that transfer in regard to conditions that the accused now faces in The Hague, we would suggest that indeed this Court has the authority to ensure the rights of the accused for a fair trial, regardless of where the accused is. And we would further suggest that one of the points raised by defence counsel would fall within that scope. That is the fact that apparently defence counsel has been denied access to communicate with his client. The Prosecution has no understanding of why that denial was made, under what conditions, but certainly this is something that we believe the Trial Chamber could order the Registrar to ensure that proper access to his client can be had by defence counsel in a very prompt fashion.

  • I am sorry to interrupt, but could you point to any Rule under the Rules of Detention that give us the right to dictate or direct the Registrar in carrying out his responsibilities under those Rules to do one thing or the other?

  • I do not have the Rules of Detention before me, but I believe there is general reference in those Rules to ensuring the accused's right to access by his counsel. But beyond that, even if --

  • That's right, Ms Hollis, there is. But if the Registrar defaults in those obligations , then he is supervised by the President, not by this Trial Chamber.

  • If I may comment, Your Honour. I believe that, as I was going to say, even beyond the Rules of Detention, which are administrative rules or regulations , I believe the Trial Chamber does have the ability to order this access because of the rights guaranteed by the Statute and the Rules of Procedure and Evidence, and I believe that those are paramount. So that you would have the right to direct to the Registrar to inquire into the circumstances of the denial, if it was not he who originated the denial, and to order that proper and prompt access be given. That is one matter that I believe is indeed a very significant fundamental right of the accused.

  • Just to make that clear, the Prosecution has no opposition to Mr Khan's application in that regard, regarding the telephones; is that correct?

  • That's correct, Your Honour. We think, first of all, it would be proper to inquire as to why this denial is in place. I have no knowledge of the circumstances that might have led to it, but proper access and prompt access by defence counsel, we believe, is something you can order.

    Secondly, however, in regard to an order to the Registrar about issuance of visas to the family, we don't believe that this is a fundamental right of the accused for a fair trial. We believe that, indeed, you may, as the Trial Chamber, express concern if you have concern about the inability of the family to travel, but we do not believe that this would be a proper matter for an order to the Registrar, because we simply do not believe it falls within the fundamental guarantees to the accused for a fair trial.

    Your Honour, lastly, as to defence counsel's application or his statement that he cannot go forward on substantive matters today, the Prosecution certainly understands that and supports that position. And in regard to the request for a status conference in the near future in The Hague, we also believe that that is an appropriate request and we certainly would have no opposition to that.

    Thank you, Your Honour.

  • Thank you, Ms Hollis. You have made the Prosecution position quite clear. Do you wish to reply to anything raised there, Mr Khan?

  • No, Your Honour. The only point perhaps I should have mentioned is my gratitude to the Prosecution . In fact, I had through other sources obtained the phone number of the chief of ICC detention, but it was, in fact, due to the kindness of the Prosecution that I obtained the mobile phone number of the member of Court Management staff that I spoke to. The Prosecution are aware of the person I spoke to, and so that conversation can be verified by them lest there be any confusion.

  • Thank you. Mr Khan, just as matter of interest, how long will you be here in Freetown?

  • Your Honour, I am sorry I can't answer that question either. I was due to be here until 4th July. Given the sudden movement, I plan, in fact, to seek a travel request to go to The Hague in the next week or so. At least until early next week, Your Honour.

  • All right. Thank you, Mr Khan. I see the Principal Defender sitting there. I presume the final composition of the defence team is being looked at, Mr Principal Defender.

  • Yes, Your Honour, I do apologise. I had it in my head that the time here was 2.30 and I am very sorry to have come 15 minutes late.

    Yes, it is being looked at. In fact, one of the repercussions of the sudden move of the accused person is that we are not able to -- in fact, we are scheduled to meet today to talk about that issue. Unfortunately we won't, but it is being looked at seriously and I am trying to make every necessary logistics possible to possibly go to The Hague and get this going in terms of finalising the team. Yes.

  • Thank you for that, Mr Principal Defender. What we are going to do, Mr Khan, is we would like to discuss the matters raised. We have taken into consideration already everything you have said and the Prosecution . We would now like to discuss it. We will hand down a written decision, but we will do that as expeditiously as possible. We are not talking about a long period of time here. If you are not leaving until next week, that decision will be handed down before then.

  • Your Honour, I am much obliged. Thank you.

  • We will adjourn this Court. Unfortunately we are not in a position at the moment to fix an exact date for the next status conference, but we will be making some provision for that in our decision when it is handed down. Thank you to the parties and we will adjourn now.

  • [whereupon the Status Conference adjourned at 2.48 p.m.]