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

  • [The accused was not present in court]

  • [Open session]

  • [Upon commencing at 9:00 a.m.]

  • Good morning. Could the court attendant please call the case.

  • The Special Court for Sierra Leone is sitting in an open session in the case of the Prosecutor versus Charles Ghankay Taylor, SCSL-03-01-T, Judge Julia Sebutinde presiding.

  • Could somebody do something about some of these headphones?

    While the headphones are being seen to, I would like to take appearances, please, starting with the Prosecution.

  • Good morning, your Honours. Brenda J Hollis, Nicholas Koumjian, Wendy van Tongeren, and Leigh Lawrie, appear today for the Prosecution.

  • I note that the accused is not in court, and I recognise the Principal Defender and Duty Counsel, Mr Jalloh. Which of you is going to address the Court on behalf of the accused?

  • Well, your Honour, we will be addressing the Court as the Defence Office, possibly addressing issues that may pertain -- that pertain to the accused but not addressing the Court for the accused as such.

  • Could you perhaps explain, first of all, why Mr Taylor is not in court yet again.

  • I got a call this morning that Mr Taylor said he would not be in court, and he said that the Chamber knows why he would not be in court. He didn't go into details as to why he is not in court. All he said is that he believes that the Chamber knows, the Honourable Chamber knows, why he is not in court.

  • Where does he get that idea? Has he formally communicated to the Chamber why he would not be in court today?

  • Your Honour, unfortunately, I didn't get the details as to that. The message that came from the detention was that he wouldn't come to court. And the question was why is he not coming to court, and he said the Chamber knows why he's not coming to court. That's the only information I got.

  • Well, for the record, the Chamber does not know, we've not been officially informed, why Mr Taylor is not in court today, and for some reason -- I don't know why he imagines that we do know. But I will take it, I think, pursuant to Rule 60, that he has voluntarily absented himself today, having given no reason for his absence, and therefore we will hear further submissions from you on his behalf.

  • Thank you.

    Your Honour, I, as Principal Defender, stand before you to address issues that emanated from the initial -- the opening on June 4th on the basis of which the Honourable Trial Chamber issued an order directing, one, that I be facilitated to travel to The Hague to consult with Mr Taylor regarding his defence problems, and, secondly, to the Registry, to ensure that logistically the accused has adequate facilities in accordance with Article 17 of the Statute, without further delay.

    Now, your Honours, that being my point of departure, I am here, and of course I came here on the 14th -- left Freetown on the 14th of June, arrived on the 15th, and engaged, with Duty Counsel, to consult Mr Taylor on the 15th, the 18th, the 19th and the 20th.

    Now, following our consultation, I want to observe that, in our consultation with Mr Taylor, he expressed quite a number of concerns which, of course, is contained in a report that we submitted --

  • Mr Principal Defender, sorry to interrupt, but I just want to caution you to restrict yourself to matters that relate to Article 17 and Article 17 only.

  • Please leave out any other administrative matters over which you have no jurisdiction.

  • Fair enough. I intend to do nothing other than that, your Honour.

    When we consulted with Mr Taylor, Mr Taylor was very much concerned about his fair-trial rights.

    Now, I want to observe preliminarily that Mr Taylor was very cooperative during the consultation and he showed a deep interest in resolving what he calls the current impasse, and he undertook to return and to participate in the proceedings before the Court if his concerns, as articulated to the Trial Chamber on the 4th of June, are addressed.

    Again, based on our consultations, he was of the view that if these problems are addressed at this early stage, he would cooperate to ensure that the trial goes on without further hiccups and delay because he, too, is concerned about undue delay in his trial, which, according to him, will impact on his fair-trial rights.

    Now, primarily the issues resolved -- revolved around his legal representation or his self-representation. Now, in addressing him, we felt that it will not be in the interests of justice for him to maintain to want to represent himself and the integrity of the court, of the judicial process, because this is an enormous case where it is in the interests of everyone, the Court, both, and the accused, that the proceedings continue in a manner that addresses adequately --

  • Please just wait.

    First of all, I just wish to note that the monitors are not working and therefore I presume the public has nothing on the screen either. I don't know why these arrangements were not completed before the court began, but I would urge that whatever you're doing to put the mistake right, you do not interrupt the proceedings, please.

    Mr Nmehielle, please continue.

  • Thank you, your Honour.

    Like I mentioned just a few moments ago, in our consultation with Mr Taylor, we, as the Defence Office, were of the view, the best point that Mr Taylor has made a request that he would represent himself based on the concerns he raised because, according to him, they were not being addressed adequately, we felt that it would -- I mean, we thought that it is not in the best interests of Mr Taylor, the judicial process, and everyone involved, for him to represent himself, and therefore there was a need, in our view, to adequately address the issue of legal representation.

    Now, Mr Taylor was open to the idea that it was not in the interests of justice for him to represent himself or the integrity of the judicial process, and felt that the issues about his legal representation needs to be -- need to be adequately addressed from the point of view of ensuring adequate resources and adequate time to enable him, if he would need a legal representation, to have a legal team be put together that, in his words, will match the capacity of the Prosecution in this enormous case.

    Now, from that perspective, we came away with an understanding that the issue could be addressed from the point of view of engaging with the Registry to ensure an adequate defence, in line with Article 17 of the Statute, to facilitate the accused's defence with the right resources and facilities.

    Now, in our consultation with Mr Taylor as to what kind of legal representation would adequately address his concerns and fair-trial rights under Article 17, he pointed out to us that his team requires a leading senior counsel at the rank of a QC to properly lead the case because of its complexity and the magnitude of the case; and that he will also want a senior counsel in addition to assist the QC, or the very distinguished advocate that he thought was necessary, on a day-to-day basis, as well as two co-counsel. Now, according to him, that will be the kind of team that will match the array of lawyers that he believes the Prosecution have.

    He also went further in terms of the legal assistants, the issue of consultants, to enable him or his defence to deal with issues that the Prosecution have, you know, elaborated on in terms of the indictment, as well as in their bid to present experts to prove their case.

    Along the same line, he articulated issues of thorough or proper investigation or investigative resources. Now, investigative resources to enable his Defence team subsequently to articulate issues within the disclosures, the number of witnesses that the Prosecution have outlined to prove their case. And he felt that the current, what he called mid-level investigation services that he has would not be adequate enough to address the expanse of the indictment in relation to the geography within the West African sub-region, Africa, and even beyond Africa, which do implicate the case.

    Now, he thought that he needed a chief investigator in addition to the international investigator he has now, who he believes will be in a position to assist the chief investigator who he believes should be nothing less than a criminal -- an experienced criminal investigator, what he calls a Scotland Yard type of investigator or a senior CIA kind of investigator, rather than a mid -- a junior person who is operating as an international investigator.

    Now, he feels satisfied, of course, with the local national investigator that has been provided in Sierra Leone and the national investigator provided in Liberia, but that the case transcends more than that. According to him, a number of parties in terms of the dispute in Sierra Leone or the war in Sierra Leone were involved beyond the West African sub-region and beyond Africa that necessitates him to have an international investigator of good experience and repute to be able to tackle the issues that flow out of it, out of the whole process.

    Now, of course, he articulated other issues in relation to detention conditions which we may not go into here because they are purely administrative. But to the extent that they impact his ability to participate in the trial from the point of view of articulating his Article 17 rights, then those could be addressed; issues of whether or not he would be properly -- he would eat and be able to attend the court for a period of -- an extensive period of sitting.

    But the bottom line is that at the end of the day, after our consultation on the 20th, we produced a report with a number of recommendations along the line of the issues expressed, more so concerned about the need for the upholding of the Article 17 rights of the accused to either self-representation, in which case facilities must be provided and resources and time must be provided to him; or, based on our advice, because of our experience and the work of the Special Court, more for him to rather have legal representation because of the interests of justice and the integrity of the judicial process rather than self-representation.

    Now, we produced a number of recommendations which, if your Honours want us to clarify or to indicate to the Court, we would, but I just wanted to say that we reported this to the Registry and our expectation is that there's a need for engagement to move this matter forward, because I believe, from the Office of the Principal Defender's perspective, that there is a constituency of which the Honourable Chamber, I believe, is part, and of course the umpire that is interested in nothing but a fair trial for any accused before the Court, under Article 17 of the Statute of the Court. And I think that even the whole global society expects nothing less than a fair trial within Article 17 of the Statute, which cannot be overridden by other considerations.

    Your Honour, this would be my report to the Court.

  • Mr Nmehielle, before you sit, I've listened to you carefully and what I've heard, in my own assessment, is a report of the bureaucratic/administrative procedures that you went through, the conversation you might have had with the accused. And, of course, it was never in question that Mr Taylor is entitled to representation. That was never in question, and so any report or conclusions alluding to the fact that it would be in his interests to have representation, in my view, is not taking the matter forward. What we expected this morning is to see counsel, replacement counsel, sitting there, addressing us on behalf of the accused, and so far you haven't given us a reason why this is not so.

  • Your Honour, I would -- I would address the Court on this particular issue.

    Now, the issue of replacement counsel for Mr Taylor for this morning is a very tricky one in the sense that, of course, reference in what has transpired since the 4th of June and the need to address this matter from the point of view of discussing these concerns and meeting logistically the needs of Mr Taylor, I had a period of between the 20th and the 25th, which is today, two working days, to address the issue of replacement of counsel.

    Now, from the point of view of the Registry, any lawyer could be brought to replace counsel. Now, in our view, it is almost practically impossible that, notwithstanding we have tried to engage replacement counsel, we have briefed the Registry on the attempts that we are making, we have spoken to a number of people -- in fact, we have spoken to -- made contact with three leading QCs in the UK on this matter as to the possibility of replacement counsel. One of them is only available for us to talk to him from the 27th of June. The others were not available, but their clerks or practice managers promised to call us back, and indeed one of them did call back to leave a message. That was between the 20th and the 22nd and the 23rd.

    Now, again, we advised the Registry on this issue. The point as to just choosing any lawyer to come here today is a very tricky one, like I mentioned, because even if we look into the former Defence team as constituted, if we do look into the former Defence team, Mr Karim Khan, of course, has withdrawn. Prior to that period, Mr Roger Sahota, who was legal assistant and bumped up to co-counsel, had left to engage fully in a trial in ICTY. And, of course, we were left with two legal assistants who had no standing, according to the rules, to appear in court.

    So the effort was rather to look around to ensure that we get replacement counsel. Now, replacement counsel, from the point of view of the accused if the issue of his legal representation should be addressed adequately, is one that has brought us to the point of looking around for distinguished lawyers to be able to replace.

    So that is a difficulty we have, and we have briefed the Registry on this. And we came to an agreement that it was necessary for us to do the utmost to engage -- to ensure that counsel is replaced within the shortest possible time, and that we have been on and it's not been very easy to get these people on board. If somebody has to say, Well, I am going to a funeral in the Caribbean, could you please call me back on the 27th of June, it becomes an issue for us to follow up within that period, and while others said we're not available and would return our call, and for us to -- to find as to the next available time to be able to speak to them, and this was between, of course, the weekend period and today, which is Monday.

    So the issue of having replacement counsel, like I said initially, is a very tricky one, and for all practical purposes it was almost -- it was impossible to have replacement counsel today, being Monday.

  • Mr Nmehielle, all of this seems rather late in the day. You personally arranged representation for Mr Taylor as long ago as April 2006. That's correct, isn't it?

  • Initial representation in terms of provisional assignment of counsel, yes.

  • Well, that counsel that was provisionally assigned ended up being permanently assigned.

  • Yes.

  • And when you say that he has withdrawn, in fact Mr Taylor has sacked him; is that correct?

  • Well, from all indications from what transpired on the 4th, Mr Taylor had terminated instructions and his representation, in which case following --

  • All right. Well, that answers my question.

  • So between April 2006 and the start of this trial, which was the 4th of June this year and which was the first occasion that this Trial Chamber had been told that Mr Taylor's current representation was inadequate, did you have any contacts with the accused indicating that his representation arranged by you was, in fact, inadequate?

  • Well, your Honour, as far back as March --

  • March 2007. I received a memo from Duty Counsel, who had gone to visit Mr Taylor, and Mr Taylor had complained about his legal representation, what he called adequate representation, and wanted to discuss issues with me in this regard.

  • All right. Well, Mr Nmehielle, we have, then, complaints to you in March, two months ago, from Mr Taylor that he's not happy with his counsel. What's been done since then to arrange alternate counsel? We're talking of two months.

  • All right. Three months.

  • Your Honour, the issue of counsel that was raised --

  • Well, is anything being done?

  • Well, I needed to, first of all, know what the details were, and I needed to consult with Mr Taylor on this issue. Unfortunately, for reasons that I may not go into here in the interests of the reputation of the Court, I was not allowed to go to consult with Mr Taylor to know exactly what these issues are to be able to address them. And again, this issue was also to be addressed from -- at about the Pre-Trial Conference and again -- particularly, we had intended to further deal with these issues from that time. And of course I could not consult with Mr Taylor.

    Now, we have done every other thing necessary from the point of view of allowing Assigned Counsel to organise his team. We've tried to facilitate. Of course, it is now an open secret that our ability to facilitate a counsel to join the team as co-counsel, because of his involvement in one of the cases before the Court, has not proved fruitful because your learned brothers in Trial Chamber I have not released him because he's a court-appointed counsel in one of the cases that is finishing. That's one attempt to --

  • I'm sorry to interrupt, Mr Nmehielle, but we're straying from the point. You knew three months ago from Mr Taylor directly that things had to be done to arrange an alternate means of representation. Now you're saying that you were not able to consult with him.

  • Additionally, Mr Principal Defender, under the rules you are supposed to, your office is supposed to, maintain a list of counsel, in other words, in reserve, from which to select replacement counsel if and when the need arises. From your submissions, it would appear to me as if you don't have this list; or if you do, what's happening? Why can't you take counsel from this list?

  • Well, we have the list and the list in question is presented to the accused, and from the accused's perspective, in terms of the legal capacity necessary to adequately deal with his representation, the accused did not see anybody within that list. I can say that in our list, our list is such a list that it does not, from all perspectives, attract the kind of -- it has not attracted the kind of legal expertise that the accused was looking at, and as a result -- that list is there. I have the list and the accused has not been able to choose anybody within that particular list. And we have --

  • Yes, but, Mr Nmehielle, let's get things in perspective here. This particular accused person is not paying for his own legal services. He takes what is available under the legal aid scheme of your office. Is that not right?

  • Well, that would be the case.

  • So, then, if the counsel that you have on your list have been good enough for 10, 11 -- 10 of the indictees in the Special Court, why are they not good enough for Mr Taylor?

  • Well, your Honour, I wish I could answer as to why they are not good enough for him. That would be a tall order for me. But the point is that the accused has not chosen any person within the list. But from -- let me stress that from day one, the issue of representation had been addressed from the point of view of ensuring that legal expertise of measurably distinguished character is part of the team from day one. And, of course, because that issue continues to rear its head in terms of the composition of the team, it becomes a concern for us, particularly because our list is a list that does not attract such people.

  • But, Mr Nmehielle, surely -- you seem to agree with the accused that the people or the counsel who are listed on your list are of inferior quality to what he's looking for. Now, if you agree, it then brings me to the question: You've known that this case was different, if you like, and you've known the kind of calibre of counsel that you would be requiring for this case as far back as last year. Why, then, are we talking today, in June, on a day when we're supposed to be hearing witnesses, why are we scrounging around looking for Queen's Counsel?

  • Your Honour, this is a problem that was identified from the beginning, and it has to do with fiscal and budgetary constraints, according to the Registry, that has prevented the kind of resources that are necessary to attract the kind of counsel.

    Your Honours, the issues of budgets, from the perspective of the Defence Office, have affected the ability to attract this kind of counsel, and I don't know if your Honours really want to go into the issues of the budget, in which case we will address you.

  • Mr Nmehielle, I don't like to keep harping on this, but I'm concerned that between March, when you were apprised by Mr Taylor that he's not happy with his current Defence team, and now we've lost three months. Now, one of the reasons you've said for those lost three months is that you wanted to contact Mr Taylor and were unable to do so. Now, you've just mentioned budgetary constraints. Do you put down the reason you couldn't see Mr Taylor before fairly recently to budgetary constraints as well?

  • Well, your Honours, I will address it this way: From the point of view of the Registry, budgetary limitation is necessary in the work of the Special Court in what has been referred to as a lean and mean budget under which we're expected to operate. Now, proposals have been made from day one, both from the provisionally Assigned Counsel and subsequently when he was assigned, that there was a need, due to the complexity of this case, to attract senior counsel to this team. This has been mentioned before this Court on several occasions. And counsel had, working with the Defence Office, tried to raise the issue with the Registry, so there has always been the budgetary constraints issue and --

  • My question, actually, was confined to asking you: These past three months, you haven't been able to see Mr Taylor.

  • Is that budgetary related?

  • Yes, because, one, the ability of the Principal Defender to engage in that kind of consultation was limited in the budget. Secondly, the issue of the -- of what fees counsel could be entitled to was dealt with in the budget. And other issues that affect the facilitation of the case in terms of investigation were also affected by the budget whereby there appeared to be a mandate from the Management Committee that the budget proposed for the Defence was just too high and therefore should be cut, and various aspects of this budget were drastically cut.

    Now, one of the issues that this budget intended to address was the need to attract reasonable legal expertise for the Taylor trial, and again all we hear about is comparisons of this case to cases that have happened in other places in relation to the amount of money that is necessary. And, of course, if we go and extrapolate from those examples, we find that this case stands uniquely alone, only to be compared to possibly the Milosevic case in terms of the budgetary arrangements that are necessary for an effective defence.

    So, yes, your Honour, budgetary constraints have affected this right from when the problem arose, and that the former counsel had to engage in banter between Registry and counsel as to what amount is necessary; or "Maybe if you do away with the arbitration clause and the legal services contract, we'll give you an extra 5,000. Is that going to be enough?" There has been that problem of budget really affecting the ability to have a formidable team.

    Your Honour, I think it is not a matter of asking for the skies. It is a matter of asking for adequate resources. From our point of view, what we have proposed are adequate resources have almost always been rejected from the point of view of a limited budget.

  • Mr Nmehielle, in everything you've said, I have not heard you telling us the way forward. You have not told us, in view of your budget and your budgetary constraints, what your plans are to have Mr Taylor represented.

  • Your Honour, that was the reason why we made a number of recommendations to the Registry after consulting with the accused, and I thought that or our office thought that the need for a way forward is to immediately engage on the issue of replacement of counsel, if the Registry will cooperate from a fiscal point of view, to be able to arrive at an acceptable -- reasonable legal representation resources for the accused. We have made our representation to the Registry. All we expect is an engagement on this issue, but it appears that rather than engage on the issue, there's a need to relitigate the recommendations, which is a bit unfortunate for us.

  • Mr Nmehielle, I don't quite agree. We've had a number of submissions, written submissions, from the Office of the Registrar, from your own office, from the Prosecutor, since we last met on June 4th, and the Registrar has clearly indicated what his limitations are financially and you simply have to fit in with these limitations. He's given figures in his submissions as to how far or how much he's willing to spend on Defence -- a Defence team. Therefore, it would appear to me that really the logical thing for you, as the Principal Defender, running a legal aid scheme, is to say to yourself, I'm going to cut my coat according to the cloth that I have.

  • I have always done that, your Honour, under reasonable circumstances and I'm prepared to do that. But, again, the issue of the amount that was offered by the Registry in terms of being able to put a team forward is an issue that, in my view, should be looked more into from the point of view of engaging with the Registry rather than a submission as to the finality, because putting a team together -- we have envisaged to put a team together, a team of experienced lawyers -- lead counsel, supported by between three -- two and three co-counsel and two legal assistants, operating in The Hague for this trial. And the figure being put forward, within the complexity of the case, is something that I don't want to challenge in this -- in this particular hearing, but rather what I would prefer, to engage with the Registry to look more into whether or not that will provide the kind of adequate resources that are necessary.

    I think the way forward for me is for the Registry and the office to sit down, rather than filing papers back and forth, and address this issue from the point of view of understanding that there is, indeed, some complexity that is -- that makes this case a bit -- much more unique or different from the other cases that have appeared before the Court, which we have said from the beginning. We have said this from the beginning. And that can enable us to deal with this issue. That notwithstanding, we are in the process of consulting people, lawyers or counsel, to form a new Defence team for the accused. And, again, the resources that have been thrown at us -- because the question is, who is going to pay, how much are you thinking, that has always been the issue.

  • Mr Nmehielle, you say the way forward is for you to sit with the Registry? Did I hear you right? Is that exactly the way forward?

  • For us to engage on this issue, appoint counsel, and move forward. And sitting with them is in terms of looking at the issue of resources one more time to be able to attract a team.

  • Yes, but, Mr Nmehielle, really, for you to come to court and tell us that -- I mean, you are part of the Registry; you fall under the Registry supervisory-wise. And you're telling us that since March you have not been able to sit down and thresh out these issues, and that today we're in court without an accused, without counsel, because you haven't sat down with the Registrar to sort out these issues? Is that a way forward? I don't understand. Please elucidate.

  • Your Honour, the issue has been one of repeated requests from the Defence Office to be able to engage on this matter. There has been unilateral and one-way approach towards the issue of Defence resources recently, and that again impacts on administrative issues that your Honours may not be in a position to want to hear. But I think approving a higher budget will address this issue, really, and enable us to move forward in constituting a team. We are ready to approach lawyers to constitute a team, but as the Defence Office, though part of the Registry, we function in a manner that enables us to facilitate a case of an accused almost independently of the Registry, but we have no resources of our own to just go ahead and begin to get lawyers to court. The issue is the need for a higher budget, the need for the Registry, core Registry, to see that there is indeed an issue of resources and possibly address it from the point of view of possibly the Management Committee to enable an adequate Defence to be provided to the accused in the circumstance.

    That is the crux of the matter, the need to provide adequate Defence, the need to ensure that a team is put together, and we cannot do that on our own because we do not have the resources. Everything boils down to whether or not the resources are adequate, and it is only the Registry that can provide that.

    And, your Honour, if I may refer to the issue of logistical resources, and it is the same motion for logistical resources that was recently delivered. It was made very clear that the Registry, in conjunction with the Office of the Principal Defender, ought to work together to meet the logistical needs of the Defence team. And so because of the need for us to -- the need for us to work together is because the Defence Office has no resources of its own. It is provided resources by the overall Registry. That is what hampers our ability. And there is a need for a proactive relationship between the Registry and the Defence Office to engage on these issues, which has not been the case since March, I can say, and it has affected our ability to organise this team properly.

  • Mr Nmehielle, one last question: Under Rule 45(E) of the Special Court rules, this is a provision that deals with a situation where counsel has withdrawn, Defence counsel has withdrawn, from the case. The last sentence of that rule says:

    "In the event of such withdrawal, the Principal Defender shall assign another Counsel, who may be a member of the Defence Office, to the indigent accused."

    Now, already, the part which deals with "another Counsel" seems problematic. But I'm just wondering what about the other leg or other arm of this rule, which says "who may be a member of the Defence Office"?

  • Yes, your Honour, and I want to underscore the word "may" in that provision. Now, of course, where the resources and the capacity are available, the Defence Office may, and I will take the word "may" advisedly in relation to the circumstances that the Defence Office currently faces.

    Your Honour, as part of the budget preparation, I had proposed for a senior legal officer to be attached to the Defence Office in The Hague to be substantively involved in the Taylor trial should there be a need for the Defence Office to step in. That was rejected. Now --

  • By "senior lawyer," you mean at what level?

  • At least a P4 level, to be attached to the Defence Office in The Hague, to possibly step in as a trial counsel where necessary in a substantive manner. That was not approved. All that was approved was Duty Counsel at a P3 level.

    Now, the circumstances of the Taylor trial in terms of whether or not the Defence Office can step in, we have a Duty Counsel who is doing administrative/detention duties in terms of liaison with the accused, research as allowed by the Defence team, and it is almost practically impossible from the point of view -- and who is not instructed in the substantive aspects of the case, neither is he allowed to look at the disclosures that the Prosecution has made to the Defence team. I wonder how such counsel, Duty Counsel, can step in.

    Of course, as much as the Prosecution would love the Principal Defender to take over the case of Mr Taylor, the Principal Defender functions not just addressing the Taylor case in terms of servicing it. It also addresses and services a number of other cases before the tribunal, of which he may be privy to some very confidential information that could result in a conflict of interest if he were to step in to take over the case.

    More importantly, the rules do not envisage a situation where the Office of the Principal Defender takes over the case of the accused, because, as I understand the rules, the issue of representation of the accused is mainly during the initial appearance and thereafter to facilitate the case of the accused -- facilitate counsel, ensuring adequate resources, and moving on.

    Now, the provision that may step in that an officer -- somebody from the Defence Office may step in is a very limited measure, and in this particular case is not the kind of measure that, of course, I would recommend for the Taylor trial.

    And the issue of whether or not the half measure or the ad hoc measure of allowing Duty Counsel to carry over the case or take over the case of Mr Taylor has been addressed in our sister institution here at the ICC, in the case of Lubanga, the Prosecutor against Lubanga, where the Appeals Chamber of the ICC ruled that the regulations of the ICC that provide for the involvement of the Office of Public Counsel for the Defence do not take away from the need for adequate legal representation for the accused, and because the functions performed by such an office, which is almost similar to our office, it's no wonder that envisages a total take-over of the case.

    So that makes it very difficult from the Defence Office in terms of its capacity to take over a massive case as that of Mr Taylor in its complexity and magnitude. That's the part that the Prosecution would want the Principal Defender to take over.

    Your Honour, my submission is that, as difficult as it is in terms of the delay being caused, rather than take half measures just to be able to enable the Prosecution to continue its case, which may very likely, probably, impact the fair-trial rights of the accused under Article 17, it is necessary that whatever little delays that may be encountered be done -- be to enable us to achieve a longer term prevention of hiccups in this case.

    I think that is what I could submit, in view of the fact that the Defence Office is not adequately resourced to take over the Taylor trial.

  • Mr Adenuga, I suppose you're representing the Registry. Would I be correct?

  • You are, Madam President.

  • You have heard all the submissions from OPD, and really I'm interested in a way forward. The Principal Defender has made certain recommendations which were then communicated to the Acting Registrar. We want to know the way forward. What progress, if any, has been made towards realising an adequate Defence team, a suitable Defence team, for Mr Taylor, as we speak?

  • Madam President, if you allow, I would like to make a preliminary remark before I respond.

    The issue of adequate resources and facilities has been a long and protracted one. Your Honours issued a decision on the 23rd of January, 2007, on these issues and expressed satisfaction that the Registry was using its best endeavours to provide the Defence with adequate resources and facilities.

    In terms of the way forward, the Registrar has filed a motion on 21 June 2007. The demands that have been made are excessive, your Honour, and if I may borrow your words, we may have to cut our coat according to our size. The accused is indigent but is insisting on the services of a Queen's Counsel or his equivalent. As your Honours have stated, there are counsel on the list of counsel maintained by the Office of the Principal Defender. Even if they do not take over long term, they may take over in the interim so that the case may at least move forward.

    Specifically regarding the proposals put forward by the Principal Defender, the Acting Registrar has shifted a little bit within the budgetary constraints that the office faces. I do not wish to go into details of figures and budgetary issues, Madam President, but the Registrar has increased the amount of monthly remuneration to a figure that we consider adequate. The Office of the Principal Defender also requested the services of a very experienced international investigator. Again, the Registrar has agreed to move the post up one grade to the P4 level to adequately support the case of the Defence. And the Acting Registrar remains flexible and is willing to continue to engage in resolving this issue.

    How do we move forward today? Our own recommendation is to have an interim counsel take over this case and continue this case. The interim counsel could be one of the former members of the last Defence team. It could be Karim Khan. It could be the former co-counsel, Roger Sahota. There is nothing that has happened here before Madam President that has not happened in the other tribunals, that has not happened --

  • Mr Adenuga, these two people have left the Court. Don't take us backwards. They have effectively left the Court. That, to me, is not an option. It's not a solution. When you're talking about solutions, forget that one. The two of them have left the court, effectively.

  • Madam President, if I leave the co-counsel and lead counsel, again, there are other members of the team, if I may go on. There are the legal assistants. I wish to stress, therefore, continuity. It may be better to integrate some of the old team with whichever new counsel is appointed to take the case forward.

  • Who are those? We didn't hear. Who are those, the legal assistants?

  • Before Mr Khan left, Madam President, he had a fully constituted team. The co-counsel left before he left, but there were at least two legal assistants attached to the team.

  • These are legal assistants who do not even have audience before the Court. How can you count on those?

  • Madam President, my recommendation was that an interim counsel is appointed, sufficiently experienced interim counsel, but assisted by these former legal assistants because of their knowledge of the case for continuity purposes. Unless I can assist you further, Madam President.

  • Mr Adenuga, you express -- you use the phrase, "The Registrar is willing to do this" and "the Registrar is willing to do that." In my view, that is not a way forward.

    You know, the strange thing is both the Principal Defender -- the Principal Defender is an office under the Registrar, so for us to sit here and listen to these exposés where the Registrar is willing to do this and willing to do that but actually hasn't done it is not cutting it.

  • With respect, Madam --

  • For example, I would like to know, since when is the Registrar willing to have a P4 as Duty Counsel? This is a matter that has been requested, has been requested of him since March. March. Would I be correct? Since March of this year the issue has been, there is a need for Duty Counsel in The Hague at P4 level, as early as March of this year. And we are sitting here listening to you saying the Registrar is actually willing to do that. If he is willing, why don't we have a P4 sitting here? We wouldn't be having this conversation.

  • Madam President, when I was referring to the P4, I wasn't referring to Duty Counsel, I was referring to a P4 international investigator.

  • I beg your pardon. Then you need to address us on Duty Counsel. Where does the situation stand? Because if we had Duty Counsel at P4 level, we might make our way forward.

  • Madam President, I cannot give you a response to that now.

  • Your Honour, if I may step in. This issue of willing to address this matter from the point of view of the Registry is really one that does not address the points the way they should.

    Now, your Honours, the issue of international investigator, I had made a budget proposal which was supported by the Cassese recommendation that an international investigator be appointed for the Taylor trial at a P5 level, which the Cassese report adopted, but somehow the Registry says, "No. Why should we have an international investigator at the P5 level for the Taylor trial? We have to cut it down to P3," and it was done unilaterally and I had no choice but to accept it.

    Again, my proposal for a P4 legal officer substantively to be involved with this team from day one was made prior to March, even during the budgets, and of course subsequently in the staffing of The Hague, they were just rejected and thrown overboard. And I had even requested for an administrative assistant to help organise the administrative aspects of the Defence Office to enable the team to function. For instance, we run around between one photocopier and one Duty Counsel and the members of the Defence team. Again, that was rejected.

    So the whole issue of willingness is not clearly seen from the practice that is on the ground.

    Now, as to -- as to the offer being made, we are not bantering here. That's why I said that the way forward, I had expected after my mission to The Hague, was to agree. We had come to the point of knowing that there's a need for replacement of counsel and we began to engage on this issue. Surprisingly, we saw a Rule 33 submission rather than pushing the matter forward.

    Your Honours, I just thought that the best way to go about this matter is for your Honours to issue an order to the Registry, looking at the recommendations that we've made in the report, to provide adequate resources for -- particularly in the legal representation of the accused and investigative services, and consultancy or expert services to the Defence team that would be constituted, from what the Bench, the Honourable Trial Chamber, looks as fairly reasonable, and to also allow time for this to happen, because at the end of the day, delay is inevitable, no matter how little, to be able to organise this process forward, since the willingness of the Registry has not translated into positive action right from the beginning.

    And if we will recall from day one, the former counsel had complained of the inadequacy and the inability to organise a formidable team because of inadequate resources that have been made -- that have been provided for the Taylor trial, from day one. I mean, we had counsel saying he had instructed -- he had consulted between 10 to 12 QCs. Nobody is willing to come because of the resources offered.

    Again, yes, we are in a legal aid system, but we have a case, from the point of view of the Defence Office, that is very complex in terms of its expanse and even the legal dimensions of it, that can stand in close comparison to the Milosevic case. Therefore, that requires, therefore, much more than the current resources that are provided.

    Your Honours, it is not us here making a case for the accused to have 10 or 20 QCs on his case. No. We want to be reasonable in terms of ensuring that the Article 17 rights of the accused are addressed from the point of view of adequacy of legal defence.

  • Mr Nmehielle, when you say you're seeking an order to the Registry that they provide adequate facilities, what the Bench say is reasonable, are you asking the Bench to assess what are adequate facilities?

  • No, your Honour. We have a recommendation in our report in terms of what we perceive to be adequate resources from the point of view of legal representation. For instance, we had recommended one Queen's Counsel to lead the case and to provide overall direction with respect to strategy and management of the case. We've recommended one senior counsel --

  • Just a moment, Mr Nmehielle. Are you asking us, therefore, to adopt this ad hoc and direct the Registrar accordingly? Is that what you're saying?

  • Yes, your Honour. I was asking for the adoption of our report, recommendations, in relation to legal representation, and I addressed the Registry on that.

    From the point of view of the fact that where every administrative action or decision has the tendency to affect the fundamental fair-trial rights of an accused under Article 17, as indicated by the Special Court's jurisprudence, particularly in this same motion for logistical resources, the Chamber can step in and can intervene and make an order for adequate resources.

  • Mr Nmehielle, I've had a browse of your recommendations. You seem to recommend QC, counsel at QC level, or just QC counsel?

  • Well, I had said counsel at QC level or equivalent experience, and of course --

  • The reason I ask that is that there is this fixation on Queen's Counsel, which does not recognise or take into recognition the fact that before this tribunal we have had very able counsel, senior counsel, from other jurisdictions who are just as capable and who are willing to work for the remuneration that the Special Court can afford, and I don't understand this fixation with Queen's Counsel. There are counsel from other jurisdictions. They don't go by the title Queen's Counsel, for obvious reasons, but they are just as qualified.

  • Yes, your Honour. Of course, the issue is experience and expertise, and it just happens that some people with such experience and expertise are Queen's Counsel.

  • But you would have no objection if we did order an alternative?

  • As long as it provides adequate representation to the accused, why not?

  • Now, I feel that I really need to give the Prosecutor -- you've heard, Madam Prosecutor, you've heard the submissions to and fro. And before we take a decision one way or the other, I think it's only fair to allow you opportunity to address us on this issue, if you have anything to say.

  • Thank you for offering the Prosecution that opportunity, Madam President. We have just a few comments to make.

    First of all, the difficulty that we are in now, we suggest to you, was orchestrated by the accused by waiting until the 4th of June, at the session in which the Prosecution was to give its opening statement, to indicate he would not be present, he would not participate in the proceedings, and that he was terminating the counsel. So it's a bit difficult for this accused, through the Principal Defender, to now come and say, even though it's difficult, we should take all the time that the accused decides he needs to get what he thinks he wants in this case. That is not to say that he is not entitled to competent representation, and indeed he is. However, he is not entitled to determine who that representation will be presented by, nor the exact title of the people who will provide that representation.

    The Statute, the jurisprudence, and fundamental fairness require competent counsel. Hopefully we have not heard the Principal Defender say in this courtroom that the list he maintains is a list that includes counsel who are not competent. Hopefully that has not been said. The Prosecution trusts that, indeed, that list contains the names of competent counsel.

    So as to the way forward, first of all, we suggest you have to deal with this issue of purported self-representation, and we suggest that is not an issue because an accused such as this one cannot on one hand boycott the proceedings by refusing to attend and on the other hand say that he is representing himself. If he is boycotting the proceedings, he is not representing himself and so that, at this point at least, is not an issue.

    Secondarily to that issue, even were this Trial Chamber to determine that the accused has made an unequivocal request to represent himself and that he will be allowed to do so, this Chamber, because it is your obligation and authority to ensure a fair trial, could take steps to appoint either stand-by counsel or, if the accused proved unable to represent himself, to then provide court-appointed counsel. But the Prosecution's position is that the Trial Chamber today should determine there is no issue of self-representation because this accused is, in effect, boycotting these proceedings.

    Now, what about representation? This accused has Assigned Counsel. He has availed himself of the legal aid regime of the Special Court. He has no right to choose his counsel. He has a right to be consulted, but his attempts to boycott the proceedings or to obstruct the proceedings may not lead this Court to conclude that counsel cannot be assigned unless he agrees to it. He has no absolute right to agree.

    So what counsel might be available either temporarily to move us forward or on a permanent basis?

    First of all, counsel from the list, competent counsel from the list, to be assisted by members of the fully constituted Taylor team, who did not take it upon themselves to remove themselves from the case.

    In that regard, your Honours, it appears that the Trial Chamber has accepted the termination by the accused of Mr Khan and has accepted his withdrawal. However, we do suggest that unless the Trial Chamber accepts that, that withdrawal is not effective; that, indeed, under 45(E), Rule 45(E), it is for the Chamber to determine such matters, especially now that we are at the commencement of this trial.

    So we would suggest that counsel from the list be appointed, with or without the accused's agreement; that those counsel be assisted by members of the fully constituted Taylor team, who may still be available. We also suggest that, contrary to the assertions of the Principal Defender, that he and Duty Counsel are available to assist, at least in the short term, so that undue delay is avoided.

    The Principal Defender has indicated that because of his position, he may have received confidential communications that would be a conflict. Absent a conflict, the theoretical possibility does not preclude him from participating in these proceedings.

    In addition, Duty Counsel should be allowed and encouraged to proceed with the counsel from the list in that he has been involved in these proceedings. Any restrictions on the role of Duty Counsel which were in effect when Assigned Counsel was here and was performing his duties are no longer in effect if this Trial Chamber has accepted the withdrawal of Assigned Counsel. And in that regard, of course, we do note that Mr Khan is not here today in this courtroom.

    That is the way forward that we would recommend.

  • Thank you.

    Mr Nmehielle, you have something to say in response?

  • Yes, your Honour. I just want to observe that, with all due respect to Madam Prosecutor, there seems to be a mischaracterisation of the fact that the accused person waited until the opening to raise the issue -- the problems that affect his defence, all with a view to cause delay or frustrate the process. This Court -- I do not believe that is a fair characterisation of what transpired.

    Now, from the point of view of representation, it is on record that the accused intends to represent himself, but we have reported that we have prevailed on him that it is not in the best interests of the court or the judicial process for him to represent himself. This case needs to be addressed from the -- from the point of view of adequacy of representation to enable the interests of justice to be done.

    Now, the proposal for the Court to appoint stand-by counsel or court-appointed counsel is not an issue that -- I think that is not yet ripe for that to happen. I know that the Prosecution wants to proceed with this case. We want to ensure that this case proceeds and that the timetable is kept. But at the same time, these are issues that would tend to, in my opinion, from my experience at the Special Court, would tend to frustrate even the process of having a court-appointed counsel imposed upon a accused who may eventually, from my experience, refuse to cooperate and at the end of the day question the process, whether or not it is what we accept, but it does happen. And that would be, too, using a sledgehammer to kill an ant at this stage of the proceedings, in my view, to impose counsel or to appoint stand-by counsel because the accused wants to represent himself. We all agreed that the issue of self-representation will not address the interests of justice.

  • Sorry, Mr Nmehielle, sorry to interrupt. On that issue, before you move forward, Ms Hollis may well have a point regarding the request to represent himself, the request by Mr Taylor to represent himself. Mr Taylor did address the Chamber in a letter on the 4th of June indicating that he would, from that date, no longer require the services of court-assigned counsel to represent him in these proceedings and he would henceforth conduct his own defence. Now, we took that letter -- it was unequivocal, we took it at face value, and we believed him. He has not contradicted or withdrawn that letter to date.

    Now, the question that begs is that a person having said they will now represent themselves and in the same breath absent themselves from court, in my view, can only have one interpretation: Boycott.

  • Your Honour, if --

  • If Mr Taylor is sincere in representing himself at least for today or before he gets his counsel replaced, he should be here in court to do that, to represent himself. He isn't here --

  • -- and, therefore, in my view, Ms Hollis may well have a point, that that can have only one interpretation, namely, boycott.

  • Your Honour, I fully appreciate your remarks, but, your Honour, the point remains that the letter you just read is predicated upon a number of reasons which impact on adequate resources, and of course we were assigned to a mission to consult with the accused on his defence problems and that mission produced an undertaking. It has not given the accused the opportunity to call the shots here. No. It produces an undertaking of his willingness to continue to participate because we -- from our experience and from the experience of this Court and other courts that self-representation will not be in the interests of justice, despite whatever the accused may have said, we prevailed on him that it is not the best way to go. But, again, he has the final decision to make. We can only advise from the provisions of Rule 45. So that letter is predicated on a number of issues which are resources.

  • The point I'm making is he hasn't withdrawn the letter as of this morning, and you, on the other hand, are going ahead to arrange a Defence team for him. How are you going to resolve these two parallel situations?

  • Your Honour, I would have thought that -- I would have thought that our representation to the Court that the accused has agreed to come back to participate in the process if these issues are addressed is an indication that what he has indicated in that letter is qualified. And as to whether or not he should have been here to withdraw that letter is a different issue for me as to whether or not -- what he should do at this point in time, particularly because we are not standing in the position of counsel for the accused as at today. We are, rather, doing our duty in facilitating adequate representation for the accused.

    So I would assume that, having sent us on a mission to consult with him, and we got an undertaking from him to come back and to participate in the process, I think that prevailed upon him to be -- to begin to even consider the issue of the formation of a legal team. And I thought that that is a success. He could have easily said, "You get out. I don't want to talk to you and I don't want to participate." But we've moved away from that point of view, to try to bring the accused back to the Court in the interests of justice.

    So, of course, I could convey a message to him that the Chamber is of the view that he has not withdrawn the letter in question. If the Honourable Chamber wants me to convey that particular message, of course I will.

  • It is a matter of fact. The letter has not been withdrawn and we take it at face value. But that is beside the decision we're about to make.

  • Mr Nmehielle, is there going to be an application by either you or Mr Jalloh to this Court?

  • Your Honour, the application -- I mean, by "application," you mean today in the course of these proceedings or subsequently? Because the application we intend to make is for the Chamber to adopt our report, particularly in terms of resources for the team for the defence of the accused person and for adequate time and facilities to enable the team to be put --

  • I'm sorry, I should have been more explicit. The Prosecution is here with witnesses. They're ready to proceeded today. Now, in relation to that situation, do you or Mr Jalloh have any application?

  • Your Honour, yes, we do have, and that application is predicated on the filing we made from our office asking for the suspension of time limits, the postponement of the hearing today, and to give adequate time to enable these issues to be sorted out before the case can proceed. We made that application and the filing, and we will refer back to it and repeat it now.

  • Well, what specifically do you call adequate time?

  • Your Honours, there are two issues in terms of timing for us, at least from the perspective of the Defence Office. The Defence Office, in my view, from my experience, will require not less than four weeks to put together a Defence team, possibly up to six weeks, in view of recess and all that.

    Now, putting together a team is our responsibility from the circumstance. Thereafter, the team that is put together will be in a position to determine, to approach the Court, as to whether they need time to proceed. And I want to bifurcate that request. We cannot make the second part of the request because we're not in a position to. But in terms of being able to put together a team, we would say between four to six weeks to constitute a team, provided that the Registry would cooperate with us in terms of ensuring that adequate resources in putting a team together are provided.

    Thank you, your Honour.

  • Mr Nmehielle, a point of clarification in your former address. You said that Duty Counsel was not allowed to have disclosure. Where did that refusal emanate from?

  • In fact, there was a direction, as I understand it - my Duty Counsel has just pointed me to the fact - that the Office of the Prosecutor itself directed Mr Karim Khan, former counsel, not to make the disclosure available to the Office of the Principal Defender. So in such a situation -- and that is the clarification, in fact, that I need to give.

  • [Trial Chamber confers]

  • Ms Hollis, you've heard the Principal Defender. Have you any comment?

  • Your Honour, the Office of the Prosecutor's position was that disclosure would be made to the Assigned Counsel, and Mr Khan was the Assigned Counsel.

  • What is your response to the application on the ground?

  • Your Honours, again, we go back to the point that the termination of counsel with whose services the accused indicated he was fully satisfied was first brought to the attention of this Chamber and the Prosecution on the 4th of June. He was fully satisfied with those services. Therefore, the dilemma we are in today is of the accused's making. He had counsel with whom he was fully satisfied, competent counsel, ready to proceed. But rather than go forward with that, he chose, in an effort to manipulate the proceedings, to come forward and fire that counsel at the last moment, or at least attempt to. Therefore, when we're looking at a solution, what the Prosecution suggests is that the accused should not be allowed to unduly benefit from a situation of his own making.

    In terms of the delay it would take to put a team together, the Prosecution suggests, once again, that what should happen is that the Principal Defender, the Duty Counsel, members of the fully constituted Defence team who are still available, should go forward with this case with some delay, because it takes them some time to be prepared to begin to cross-examine witnesses, but that they should go forward with this case with perhaps someone from the list so as to minimise the delay for the case to go forward. While the case is going forward, if there needs to be additional members brought on as a permanent team, those efforts could be going on while this case is moving forward.

    But to say that we must stop now, as though we are back at ground zero, we suggest, is not consistent with the circumstances that brought us here today, nor is it consistent with the needs of the case, the needs of the accused. We have the means to go forward, and while we're going forward, then other steps can be taken to bring on additional team members.

    Again, it appears that much too much emphasis is being placed on what the accused decides will be the way these proceedings run.

    In terms of trying to entice the accused back into this courtroom, the Prosecution suggests that the accused has no right to refuse to attend criminal proceedings. Rather, what is in the rules and the Statute -- the Statute talks about the rights of the accused to be present, not to be absent; the rules talk about the discretion of this Trial Chamber to move forward in certain circumstances, such as when the accused refuses to attend. The rules do not say that the accused has a right to attend.

    This Court, in fact, could order the accused to come forward. And in fact the Prosecution suggests that indeed the Court should order that because there is one technical but significant outstanding matter that has not been dealt with and that is an entry of a plea on the amended count 5 of the indictment. Now, of course, should the Trial Chamber elect not to exercise its discretion to force the accused to be in the courtroom, it could enter a plea of not guilty on that count, and perhaps the Court will wish to exercise its discretion in that manner.

    But it is this Trial Chamber that has the duty and the authority to control these proceedings and to do the overall supervision of these proceedings to ensure that justice prevails and that it is a fair trial. It is not for this accused to negotiate his presence in this courtroom. It is for the Trial Chamber to determine whether they will require his presence or whether, pursuant to the rules, they will move forward in light of his refusal to attend.

    This is not a matter for him to decide. This is a matter for your Honours to decide based on your sound discretion.

    Thank you.

  • [Trial Chamber confers]

  • The Chamber will retire for approximately an hour and we will return with a decision on the way forward at 11:30. We shall reconvene at 11:30.

    Please adjourn the court.

  • All rise.

  • [Recess taken at 10:24 a.m.]

  • [On resuming at 12:12 p.m.]

  • All rise. Please be seated.

  • Firstly, I want to apologise for taking longer than we had indicated, simply because we needed that much more time to formulate our decision.

    The following is the Trial Chamber's decision regarding the issues as they lie on the floor:

    The Trial Chamber recalls that on the 4th of June, 2007, the accused, Mr Charles Ghankay Taylor, wrote a letter addressed to the Presiding Judge notifying the Chamber that he, amongst others, terminated instructions to his then legal representatives and that he was from that time forward going to represent himself. This is what the letter said in summary.

    The Trial Chamber notes that the accused's absence in court today, in absence of any explanation to the Court, is not only inconsistent with his indication to represent himself - for how can one represent oneself if they're absent? - but it's also tantamount to boycotting the proceedings, in the Chamber's view.

    The Trial Chamber agrees with the Prosecutor that the accused does not have the option to appear before this Court as and when he chooses to. Regardless of the issues or difficulties he is encountering in sorting out his fair-trial issues - and we in no regard consider those issues as small or trivial; they are valid issues - but regardless of those issues, the accused is under an obligation to appear before the Court at all times. When he chooses not to appear, we can assume that he has deemed to absent himself or he is, in fact, boycotting the proceedings as a whole.

    Now, having said that, the Trial Chamber notes the Principal Defender's submission this morning that he has tried, the Principal Defender has tried, and succeeded in persuading Mr Taylor that the idea of self-representation would not be in the interests of justice, nor of the integrity of the judicial process in these circumstances. The Trial Chamber, therefore, accepts that Mr Taylor no longer wishes to represent himself and instead would accept Assigned Counsel to represent him.

    The Trial Chamber would like to draw the attention of the Principal Defender to the provisions of Article 24(D) of the Practice Direction on Assignment of Counsel. The provisions require the Principal Defender, upon accepting withdrawal of Assigned Counsel, to, and I quote, "immediately assign new counsel to represent the accused and, where appropriate, authorise the nomination of other counsel in the Defence team."

    We also would like to draw your attention, Mr Principal Defender, to Article 25(A) of the same Directive which provides that "where counsel is withdrawn by the Principal Defender, or where the services of Assigned Counsel are discontinued," as in this case, "Duty Counsel of the Office of the Principal Defender shall give the accused legal assistance until a new counsel is assigned, unless the accused waives his right to such assistance."

    In other words, the Statute, the rules, and Directive on Assignment of Counsel do not envisage a vacuum situation whereby, after assignment -- Assigned Counsel are withdrawn, there would be no provision made to replace counsel.

    The Chamber, therefore, notes that the Principal Defender should have endeavoured, at least in the short term and in the interim, to comply with the provisions of Articles 24 and 25, as I've read them above, of the Directive on Assignment, and this should have been done in the interests of justice.

    Now, regarding the long-term provision for Assigned Counsel, the Trial Chamber has noted the submissions of both the Principal Defender and Mr Adenuga on behalf of the Acting Registrar. The Trial Chamber notes that the issue of inadequate representation has been known to the Acting Registrar in general and to the Principal Defender in particular since early March 2007 and nothing practical seems to have been done to address the problems.

    The focus of the Registry has not been to provide the accused with adequate representation as required by Article 17 of the Statute. Rather, the Registry's focus has been conserving funds and working within budgetary constraints. In the Trial Chamber's view, the whole issue has wrongly boiled down to availability of finances rather than fair-trial issues being addressed.

    The Trial Chamber wishes to emphasise that if this Court is expected to conduct a fair and expeditious trial, then the provision of adequate representation and adequate resources are inevitable. They must be provided.

    The Trial Chamber has, on a number of occasions before today, warned the Registry of potential delay arising out of the failure to resolve these issues in a timely fashion, and today our worst fears have been realised.

    In our view, the resolution of this issue lies squarely with the Registrar, Acting Registrar, in consultation with the Office of the Principal Defender, and failure to resolve this issue has led to this and probably further delay of these proceedings.

    We wish to emphasise here that we really would not like -- or we've frowned upon undue delay in this trial. That it would come from an institution within the Court is really regrettable, or it would come from some kind of a consideration of budgetary constraints, et cetera, is really regrettable, and I do not know how to underline that.

    In the circumstances, the Trial Chamber makes the following orders, which we consider to be in the interests of justice and which we hope will move this trial forward. They are divided into short-term measures and long-term measures.

    Now, in the short term, the Principal Defender is directed to immediately comply with the provisions of Article 24(D) of the Directive on Assignment of Counsel by assigning new counsel to represent the accused, either from the list of counsel or from OPD.

    Again, in the interim, the Principal Defender is further directed to retain, if possible, the residual team members of the Taylor Defence team to assist this newly Assigned Counsel.

    And thirdly, in the interim again, Duty Counsel, the present Duty Counsel, is directed to appear in court on Monday, the 2nd of July, 2007 - that's a week from today - when this case reconvenes, to represent the accused if Assigned Counsel is not yet in a position to start -- to assume his duties. So, in other words, the trial will commence on the 2nd of July, and these are the interim measures that we'll put in place. The trial will continue on the 2nd of July.

    Now, in the long term, and this is directed at the Acting Registrar, the Acting Registrar is directed to ensure that by the 31st of July, 2007 --

  • [Trial Chamber confers]

  • Sorry, I beg your pardon. I'm told the 2nd of July is a public holiday here in the Netherlands; is that correct?

  • It's an ICC/Special Court holiday.

  • Then, in that case, I will adjust that order to read that we shall adjourn these proceedings to Tuesday, the 3rd of July, when we expect these proceedings to continue, and I will tell you in a minute how they will continue.

    Now, this next order is directed at the Registrar as a long-term measure. He is directed to ensure that by the 31st of July, 2007, which is barely more than a month from today, the Principal Defender is enabled to assemble a Defence team for Mr Taylor comprising the following: One lead counsel of the qualities described or mentioned in Rule 45(C) of the rules, two co-counsel of the quality described in Rule 45(C) of the rules, and one senior investigator at a P4 level. These will supplement the residual members of the team of Charles Taylor as they now exist, the various assistants.

    Now, the fully constituted Defence team should be in place by the 31st and ready to address the Chamber when we reconvene.

    Court will adjourn to the -- in the interim, court will adjourn in a week's time, to the 3rd of July, for the continuation of the Prosecution case. That's, fairly, a week from today. During that time we expect either Duty Counsel to represent the accused or the newly Assigned Counsel in the interim to represent the accused, because the Prosecution will continue with their case on that day.

    Now, the Trial Chamber also wishes --

    Yes, Ms Hollis, did I make a mistake?

  • No, your Honour. I'm sorry to interrupt. I will withhold my question until you have finished. Thank you.

  • So I was going to continue that the Trial Chamber wishes to inform the parties of the forecast of what's going to happen in the next two months.

    First of all, the Chamber is required to be in Freetown for sentencing proceedings with regard to the AFRC trial, and we should be there from the 12th of July until about the 19th of July for this purpose, and so we will not be here but we will be in Freetown and therefore the proceedings in this case during that time will not be able to take place.

    We will be back in The Hague on the 20th of July, but unfortunately that is the day that the ICC recess also commences and so we will not be able to sit in court for these proceedings until the end of the ICC recess.

    Now, this is what we had initially said, that we would comply with the ICC recess times. The ICC recess, I think, ends on the 13th of August, if I'm not mistaken, 13th of August, 2007. However, this was before the President of the Special Court issued an order designating the recess for Freetown. Now, the Special Court recess starts a little bit later than the ICC recess and also lasts a little bit longer than the ICC recess, a week longer.

    Now, given the fact that parties cannot file any documents until the Special Court recess is over, we did not think it wise to reconvene this trial during the pendency of the Special Court recess. In other words, we expect to reconvene the trial after the -- on Monday, the 20th of August, that is, after both recesses are over. So Monday, the 20th of August, is the day that we'd reconvene next, after we adjourn next week. We will have one more week --

  • [Trial Chamber confers]

  • If I've confused you, this is how it will be: We will now adjourn to Tuesday, the 3rd of July, and we will sit through to the 11th of July. We will then adjourn to enable ourselves to travel to Freetown for the sentencing proceedings in the AFRC case. We will then return to Freetown [sic] just in time for the recess to begin. Court will be in recess from the 20th of July until the 20th of August. The first day that we will next reconvene will be the 20th of August, 2007. I hope that is clear.

  • [Trial Chamber confers]

  • What I meant was the Court will return from Freetown to The Hague after the sentencing proceedings.

    Now, Ms Hollis, you still have questions?

  • The question, your Honour, had to do with the practicalities of our disclosure obligations and also outstanding responses to motions.

    It is the understanding of the Prosecution, based on what Madam President has just announced to the court, that we should, as of today, serve disclosure on the Duty Counsel, as no other counsel has yet been appointed.

  • That is correct, Ms Hollis. That is correct.

  • And will it be Duty Counsel that will be responding to these outstanding motions?

  • That is correct, according to Rule -- I think, Article 25(A), that is how we understand it.

  • Thank you, your Honour. And then finally, just for absolute clarification, we will sit the week of the 3rd, but at the end of that week, we will not sit again until the 20th of August; is that correct?

  • You will sit the week of the 3rd, and the last day of sitting will be the 11th of July. We fly back to Sierra Leone the next day.

  • Thank you very much.

  • Mr Principal Defender.

  • Yes, your Honour, there are, indeed, practical difficulties from the perspective of the Office of the Principal Defender and as a result I would like to make a few observations.

    Now, of course, by the order of the Court, Duty Counsel is supposed to, in the interim, assist with the case. As indicated, this case, the trial, is to continue on the 3rd of July. There are a lot of pending motions which Duty Counsel does not have the -- I mean, within the time period, the ability to respond to all of them, and of course the disclosures that he has not been privy to before now, to look into between 35 to 40,000 pages of disclosure, Prosecution disclosure, and continuing disclosure, for him to be ready to possibly participate in the case as of the 3rd of July, this will create real practical difficulties.

    And, your Honours, there are some issues I would like to address you in chambers rather than in public in terms of practical difficulties for the OPD regarding this issue. I wouldn't want to mention them in public.

    So these are the difficulties I just thought I should throw out to the Honourable Chamber.

  • Mr Nmehielle, the orders we've made are made in light of the existing rules and the existing articles on -- the existing Directive on Assignment of Counsel. We have not come out with any directives that fall outside of these provisions. We've not invented anything new.

    Now, practical difficulties or no difficulties, we cannot have a vacuum situation whereby the trial is held to ransom or the progress of the trial is held to ransom because you've not been able to assign counsel. It is precisely for such a situation that Duty Counsel has been appointed. If you think that the present Duty Counsel is not able to handle the case, then please come up with someone who can. And I don't think that Duty Counsel is required, for the purposes of responding to the motions, to be conversant with the 40,000 pages of disclosure. That is one.

    But, secondly, it is all the more reason that you should expedite the appointment of this other counsel, Assigned Counsel, that we've directed in the short term. And if counsel, on the 3rd of July, have any problems addressing the Court or dealing with any issues, surely they are capable of making their own applications in that regard.

    I see no reason to adjust our court orders, especially in the absence of alternatives. You leave no room to the Trial Chamber -- to the Trial Chamber for alternative orders. So we have to go by what the rules say and what the directives say.

  • But, your Honour, the practical difficulties extend to the fact that some of these motions are already due, and the issue of -- the order of the Court today, as interpreted in relation to the provisions of Article 24(D), we had a situation, your Honour, where the accused is representing -- was representing himself that gave rise to the fact that the provisions of Article 24(D) could not immediately apply, in my view. And as such the order of today does not, in my view, take into account the fact that the accused was representing himself until today, whereby we reported to the Court that we prevailed on him to rethink the possibility of being represented by counsel and therefore the need to put together a legal team.

    All that said, the practical difficulty is that some of these motions are already due, and if Duty Counsel will have to respond to them, it has to be with the aid of the Court in terms of an extension of time within which he is able to do that so that we don't create a legal anomaly under the circumstances.

  • Mr Principal Defender, that is up to counsel. There is legal provision and latitude for him to apply for extension of time. We shall deal with that if and when it arises.

  • With that, the Court stands adjourned until Tuesday, the 3rd of July, for continuation of the Prosecution case.

  • [Whereupon the hearing adjourned at 12:34 p.m.]