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Public Transcript of the Hearing Held on 28 September 2017 in the Case

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Public Transcript of the Hearing Held on 28 September 2017 in the Case 20170928_STL-11-01_T_T402_OFF_PUB_EN 1/114 PUBLIC Official Transcript Procedural Matters (Open Session) Page 1 1 Special Tribunal for Lebanon 2 In the case of The Prosecutor v. Ayyash, Merhi, 3 Oneissi, and Sabra 4 STL-11-01 5 Presiding Judge David Re, Judge Janet Nosworthy, 6 Judge Micheline Braidy, Judge Walid Akoum, and 7 Judge Nicola Lettieri - [Trial Chamber] 8 Thursday, 28 September 2017 - [Trial Hearing] 9 [Open Session] 10 --- Upon commencing at 10.03 a.m. 11 THE REGISTRAR: The Special Tribunal for Lebanon is sitting in an 12 open session in the case of the Prosecutor versus Ayyash, Merhi, Oneissi, 13 and Sabra, case number STL-11-01. 14 PRESIDING JUDGE RE: Good morning. We'll go to the evidence of 15 Mr. Donaldson in a moment. 16 Appearances, I note Mr. Desalliers, Ms. Carrier-Desjardins, and 17 Ms. De Bruir appearing for the Prosecution; Mr. Haynes is for the 18 Legal Representatives of Victims; Mr. Hannis for Mr. Ayyash; Mr. Khalil 19 for Mr. Merhi; Ms. von Wistinghausen for Mr. Oneissi, and Mr. Young and 20 Ms. Bafadhel for Mr. Sabra. There are also two representatives of the 21 Defence Office in the court. 22 Good morning, Mr. Young. You're on your feet already. 23 MR. YOUNG: Good morning, Mr. President. 24 PRESIDING JUDGE RE: Does that mean you've wrapped up your 25 cross-examination? Thursday, 28 September 2017 STL-11-01 Interpretation serves to facilitate communication. Only the original speech is authentic. 20170928_STL-11-01_T_T402_OFF_PUB_EN 2/114 PUBLIC Official Transcript Procedural Matters (Open Session) Page 2 1 MR. YOUNG: If only. If only. If only. But we're nearly there. 2 Your Honour, there is a -- Your Honours, there are very important 3 preliminary matters I'd like to raise, please, if I may, just briefly, 4 just to update Your Honours on two matters. 5 Firstly, Your Honour will remember making the order in relation 6 to translations in relation to the 018 texts, which we were grateful for. 7 I wanted to, if I may, just to update you on that. And secondly to -- to 8 tell you where we are in relation to the 24 witnesses. I'm going to 9 propose a hopeful -- hopefully a sensible solution. And then I -- I 10 think Mr. Desalliers wants to make a point after that. 11 Your Honour, in relation to translations first -- 12 PRESIDING JUDGE RE: Mr. Young, pause. Our court reporter is 13 suffering. 14 MR. YOUNG: Ah. 15 PRESIDING JUDGE RE: Could you just please slow down. 16 MR. YOUNG: Yes. Your Honour, the situation is this: That in 17 relation to translations, following Your Honour's order, or direction, on 18 Monday this week I understand the Prosecution disclosed a -- what were 19 called newly completed translations. There was no OTP letter dealing 20 with that as you normally have, but the metadata read: "Disclosure of 21 newly completed translations." 22 Your Honour, the situation is that we requested the same day to 23 see the originals, dating back apparently to 2011, and on Tuesday this 24 week we received -- we -- sorry, we requested on Monday the originals. 25 On the Tuesday we received what purported to be to the 2011 translations, Thursday, 28 September 2017 STL-11-01 Interpretation serves to facilitate communication. Only the original speech is authentic. 20170928_STL-11-01_T_T402_OFF_PUB_EN 3/114 PUBLIC Official Transcript Procedural Matters (Open Session) Page 3 1 and I have a copy of that now. And it's fair to say they're in a form 2 where in relation to the -- the texts where there was said to be names, 3 the names are in bold and highlighted. So that's a relevant piece of 4 information given my cross-examination. 5 So I'd like to revisit Mr. Donaldson for five or ten minutes just 6 on that. I can deal with it very quickly. 7 In relation to the second point, which is the 24 -- forgive me, 8 the 24 -- the 24 named persons who were questioned on 018. Your Honour, 9 can I just put our position very shortly. In relation to these 10 24 witnesses, the Defence will not seek admission at this stage in the 11 light of the Trial Chamber's decision of the 25th of September. However, 12 the Defence have already notified the Trial Chamber of its intention to 13 seek leave to appeal of this decision. And if granted, and if the 14 eventual appeal is successful, the Defence will thereafter seek admission 15 of these statements. 16 In the meantime, Your Honour, as a compromise -- and can I ask 17 your learned legal officer to hand you some document, it's a one-page 18 document, which has been given to the Prosecution yesterday. If that 19 could please be handed up. Yes. 20 So instead of seeking to deal with 24 different witness 21 statements and then cross-examining on propositions and content, 22 Your Honours, I thought might be a sensible way to ask just a few generic 23 questions and deal with it in a space of five -- five minutes, hopefully. 24 And so we set out there the 24 named witnesses, and I'm having that 25 uploaded as a confidential aide-memoire of 24 names as we speak. And I Thursday, 28 September 2017 STL-11-01 Interpretation serves to facilitate communication. Only the original speech is authentic. 20170928_STL-11-01_T_T402_OFF_PUB_EN 4/114 PUBLIC Official Transcript Procedural Matters (Open Session) Page 4 1 hope that might be a sensible alternate course which is faithful to the 2 Trial Chamber's decision in relation to witness statements. So that's 3 my -- that's what -- that's the update. 4 Your Honour, in relation -- 5 PRESIDING JUDGE RE: Mr. Young, it's not actually 24. It's 20 6 because four of them are already admitted into evidence; is that right? 7 MR. YOUNG: I'm sure Your Honour is right. Yes, Your Honour is 8 right. So it's 20. I think it's probably from number 5 -- 6 to 24, I 9 think. 10 PRESIDING JUDGE RE: Numbers 2, 3, 5, and 24 already have exhibit 11 numbers. 12 MR. YOUNG: Well, yes. So I thought it best to describe it as a 13 confidential aide-memoire. There was never an intention to list the 14 names. We -- we explained a while ago we would never seek to list the 15 names in public. It was just to make a point in relation to the purport 16 of what comes from that body of evidence, and I think I can do that in 17 five or ten minutes. So I hope that's a sensible suggestion. 18 In relation to translations, given that we have the now disclosed 19 apparent original version, then I've -- I've asked for that to be 20 uploaded now. So I hope that's been done as we speak. 21 Finally, Your Honours -- 22 PRESIDING JUDGE RE: Mr. Young, before you go on, let's just take 23 it a step further. These 20 witness statements or the propositions 24 within them, what's to stop you -- or if you're going to cross-examine on 25 propositions within them, it's up to you, but it probably would assist if Thursday, 28 September 2017 STL-11-01 Interpretation serves to facilitate communication. Only the original speech is authentic. 20170928_STL-11-01_T_T402_OFF_PUB_EN 5/114 PUBLIC Official Transcript Procedural Matters (Open Session) Page 5 1 you gave the source of the information with an ERN so that we don't lose 2 it. But as you appreciate, you don't have to, in cross-examining, 3 provide the source of your information, but it's up to you. 4 MR. YOUNG: I've -- I've tried to do. I think I'll -- I'll -- 5 with respect, I'll leave it as it is. All the ERNs are there. I think 6 I'll leave it there with some generic questions. 7 PRESIDING JUDGE RE: Mr. Young, what -- you said you wanted to 8 seek certification for interlocutory appeal in relation to the 9 Trial Chamber's decision not to admit witness statements under Rule 154, 10 which is the document provision as opposed to the Rule 155, 156, and 158, 11 which are the witness statement provisions. 12 Hypothetically, what if the Chamber is against you on appealing? 13 Where does that leave your cross-examination? Given that even -- even if 14 you successfully -- even if we grant you certification and you appeal, 15 Mr. Donaldson will be long gone by the time that we get any decision by 16 the Appeals Chamber. I think the last one, which didn't involve the 17 death of Mr. Badreddine, I think took four months to get a decision. 18 That was Mr. Nashabe. It does take a long time to get a decision on a 19 Trial Chamber decision from the Appeals Chamber. 20 MR. YOUNG: Well, as always, that is an excellent question. May 21 I have a little time to reflect? I have to say, I've been -- as I've 22 been rather engaged this week, I haven't, I have to say, had a chance to 23 go through your decision with -- with the detail I like. Others have 24 been dealing with that aspect of it. But I take on board what you say. 25 For my purposes, it would be -- I would be happy to proceed in Thursday, 28 September 2017 STL-11-01 Interpretation serves to facilitate communication.
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