1. 1 Wednesday, 18th November, 1998

    2 (Open session)

    3 --- Upon commencing at 2.35 p.m.

    4 JUDGE RODRIGUES: Good afternoon, ladies and

    5 gentlemen. Please have the accused come in.

    6 (The accused entered court)

    7 JUDGE RODRIGUES: Hello to everybody. I hope

    8 the interpreters are ready. Yes, they are.

    9 Mr. Hirad, can you please call the case?

    10 THE REGISTRAR: Case number IT-95-14/1-T, the

    11 Prosecutor versus Zlatko Aleksovski.

    12 JUDGE RODRIGUES: Thank you, Mr. Hirad. Can

    13 we have the appearances for the Prosecution?

    14 MR. NIEMANN: Good afternoon, Your Honours.

    15 My name is Niemann, and I appear with my colleague

    16 Mr. Meddegoda, and Ms. Erasmus is the case manager for

    17 the Prosecution, if Your Honours please.

    18 JUDGE RODRIGUES: And for the Defence?

    19 Mr. Mikulicic?

    20 MR. MIKULICIC: Good afternoon, Your

    21 Honours. I am Goran Mikulicic, and along with my

    22 colleague Mr. Joka, we represent the Defence. Thank

    23 you.

    24 JUDGE RODRIGUES: Thank you very much. Our

    25 work programme for today is to look into the motion

  2. 1 filed by Kordic and Cerkez, a motion relating to

    2 various Chambers' hearing of cases related to the Lasva

    3 River Valley, and one of the Chambers concerned is

    4 ours, the Chamber dealing with the Aleksovski case. So

    5 we received an official notice from the Kordic Chamber,

    6 as I shall call it, asking us to hear the parties on

    7 this matter.

    8 But before we deal with this matter as such,

    9 I would like to turn to Mr. Mikulicic. Are you aware

    10 of the matter, Mr. Mikulicic? I mean, this is a

    11 question I am putting to both parties. Do we need to

    12 take stock of the situation as such, or are you all

    13 aware of the various elements thereof? Are you

    14 sufficiently informed so that you can start discussing

    15 the issue straightaway?

    16 Let's turn to Mr. Mikulicic first.

    17 MR. MIKULICIC: Your Honours, the Defence is

    18 familiar with the request from the Kordic matter, and

    19 we are prepared to discuss it.

    20 JUDGE RODRIGUES: You are well aware of the

    21 situation, Mr. Niemann, but I would like to hear you,

    22 if you don't mind?

    23 MR. NIEMANN: If Your Honours please. Your

    24 Honours wish me to address you in relation to the

    25 motion now?

  3. 1 JUDGE RODRIGUES: Indeed.

    2 MR. NIEMANN: Your Honours, yesterday when I

    3 was speaking at this lectern, I wasn't being heard very

    4 well, so I invite the interpreters to please remind me

    5 if they cannot hear me properly.

    6 Your Honours, in relation to this motion that

    7 has been filed by the Defence in the Kordic case, it is

    8 an application to this Chamber for access to non-public

    9 transcripts, exhibits, Tribunal orders and decisions

    10 and other materials necessary to the defence of the

    11 accused that have been submitted in this case.

    12 If Your Honours please, this is an

    13 application to this Trial Chamber to, in effect, make

    14 discovery, and in our respectful submission, it ignores

    15 the fact that the Prosecutor has the obligation to make

    16 extensive discovery under Rules 66 and 68. It is a

    17 request that Your Honours make discovery separate and

    18 distinct from the Prosecutor, and in our submission,

    19 there is no merit in this application, but if there was

    20 merit in the application, it would entail this Trial

    21 Chamber examining all the non-public transcript,

    22 exhibits, orders, decisions and other materials that

    23 have arisen in this case in order to determine whether

    24 that material is necessary for the defence of Dario

    25 Kordic and Mario Cerkez.

  4. 1 Now, Your Honours, how it is that Your

    2 Honours are expected to know what is necessary for the

    3 defence of Dario Kordic and Mario Cerkez is not

    4 explained in the motion and it is beyond me how Your

    5 Honours would know that. I certainly don't know what

    6 material is necessary for their defence, I don't know

    7 if Mr. Mikulicic knows. Certainly, Your Honours, the

    8 prosecuting counsel in the Kordic and Cerkez case, the

    9 counsel that appears for the Prosecution in that case,

    10 must know because he has a legal duty and an obligation

    11 to know, because on behalf of the Prosecutor, he must

    12 discover the material pursuant to Rules 66 and 68.

    13 Your Honours, that is a matter for him; that

    14 has nothing to do with counsel for the Prosecution in

    15 this case, and I would respectfully submit that it has

    16 nothing to do with Mr. Mikulicic, who appears for

    17 Mr. Aleksovski, and unless Your Honours were prepared

    18 to entertain this application, it is my submission that

    19 it would not be an obligation that would fall upon Your

    20 Honours either.

    21 Your Honours, all of this issue in relation

    22 to discovery is a matter for the Trial Chamber in the

    23 Kordic and Cerkez case, and it is for the Trial Chamber

    24 in that case to ensure that the Prosecutor, through

    25 prosecuting counsel, complies with her duties with

  5. 1 respect to discovery.

    2 Your Honours, it is not clear what the basis

    3 of this application is. In my submission, it cannot be

    4 an application under Rules 66 or 68 of the Rules

    5 because these Rules cast responsibility on the

    6 Prosecutor and not on the Chamber.

    7 Your Honour Judge Vohrah may recall an

    8 instance in the Tadic case when, at one stage during

    9 the course of the proceedings, counsel for the Defence

    10 suggested that the Trial Chamber become involved in the

    11 supervision of discovery pursuant, in that case, to

    12 Rules 66 and 68. It was just a passing moment in the

    13 trial. But Her Honour Judge McDonald made it very

    14 clear that this was a duty that rests on the shoulders

    15 of the Prosecutor; it wasn't a matter for the Trial

    16 Chamber and it wasn't a matter that the Trial Chamber

    17 was going to take on.

    18 So, Your Honours, we are left then to examine

    19 the motion that has been filed by counsel for Kordic

    20 and Cerkez to see whether there is any other basis upon

    21 which this application can be brought.

    22 They make reference to Articles 20 and 21 of

    23 the Statute, and I think it is a fair interpretation to

    24 suggest that they cite these particular Articles as a

    25 basis upon which this Chamber would have a

  6. 1 responsibility to make discovery as they would suggest.

    2 But in our submission, Your Honours, I cannot

    3 see how Articles 20 and 21 require the Trial Chamber in

    4 the Aleksovski case to join in and share responsibility

    5 for the Trial Chamber in the Kordic case to see that

    6 Kordic and Cerkez get a fair trial. If this argument

    7 had any merit, why would it necessarily have to be

    8 limited to discovery?

    9 If Your Honours, in the Aleksovski case, have

    10 a duty under Articles 20 and 21 of the Statute to

    11 ensure that Mr. Cerkez and Mr. Kordic are given a fair

    12 trial, why limit it to discovery? You should extend it

    13 to every aspect of the trial. Your duties would

    14 continue right across the board, in my submission.

    15 This would have the somewhat absurd and

    16 extraordinary consequence that not only would Your

    17 Honours' Chamber have this duty and responsibility but

    18 it would be a duty and a responsibility that extended

    19 to every other Trial Chamber, because what is being

    20 asserted here is that under Articles 20 and 21, Messrs.

    21 Cerkez and Kordic have a right to a fair trial, and

    22 because they have this right, they can enjoin Your

    23 Honours in ensuring that they get that. Now, Your

    24 Honours, that's absurd because that would mean that

    25 every time a trial took place, every Judge in the whole

  7. 1 Tribunal except the Appellate Chamber would be required

    2 to sit on the case, and that certainly cannot be the

    3 case.

    4 Who has the responsibility to ensure that

    5 there is a fair trial? It is the Trial Chamber that

    6 tries Messrs. Kordic and Cerkez. That doesn't mean,

    7 Your Honours, that we are suggesting that we don't want

    8 to see that they don't get a fair trial, or that

    9 somehow or other we are irresponsible in this. Not at

    10 all. We are most anxious to ensure that they get a

    11 fair trial. The point of the matter is, the

    12 responsibility doesn't fall to Your Honours.

    13 Therefore, there is no extension of that to say that

    14 because Your Honours have a duty to ensure that they

    15 have a fair trial, that you therefore accept and must

    16 carry the burden of ensuring discovery, discovery

    17 beyond that required of the Prosecutor.

    18 Your Honours, when Their Honours were

    19 drafting the Rules of Procedure and Evidence,

    20 responsibility for discovery was placed squarely upon

    21 the shoulders of the Prosecutor. Rules 66 and 68

    22 create heavy burdens upon the Prosecutor, and it is a

    23 very proper and appropriate burden. If the Prosecutor

    24 does not discharge his responsibilities, or her

    25 responsibilities, under Rules 66 and 68, then it is a

  8. 1 matter for Messrs. Kordic and Cerkez to approach that

    2 Trial Chamber in order to raise the matter, and it is

    3 for that Trial Chamber to then direct the Prosecutor to

    4 properly perform her responsibilities with respect to

    5 discovery; and I think we all would accept, Your

    6 Honours, that the Trial Chamber in the Kordic and

    7 Cerkez case would have no hesitation in ensuring that

    8 the Prosecutor complied with her discovery obligations

    9 under the Rules and so there could be no question of

    10 any hesitation on the part of that Trial Chamber to do

    11 that.

    12 Now, when it comes, especially to Rule 68,

    13 there is no question that the Prosecutor has an

    14 obligation to examine the material that has been

    15 submitted in this case. It is not done by me

    16 personally as counsel in this case, it is done by

    17 counsel in the Cerkez and Kordic case. With respect

    18 especially to Rule 68, that obligation, of course,

    19 arises, because if something happened in the course of

    20 this case which fell within Rule 68, such as material

    21 that was exculpatory, the Prosecutor's obligations

    22 would exist.

    23 Now, what would happen then is that if the

    24 Prosecutor made such a determination that the material

    25 was discoverable under Rule 68 and if that material was

  9. 1 protected by an order of this Chamber pursuant to Rule

    2 75, it would then be incumbent upon the Prosecution to

    3 approach Your Honours and ask that the order be lifted

    4 or that there be some variation in the order in respect

    5 of that material so as to permit the Prosecutor to

    6 comply with her obligations under Rules particularly 68

    7 but also possibly 66.

    8 So what happens with the procedure, in my

    9 respectful submission, is this, that because the

    10 Prosecutor has these somewhat onerous

    11 responsibilities - but I say appropriate and proper

    12 responsibilities - the Prosecutor must examine the

    13 material in all cases. It then has to make a

    14 determination of whether or not any of it falls within

    15 Rules 66 or 68. If the material falls within Rule 68

    16 and/or 66 and the Prosecutor needs to make discovery

    17 but ascertains that the material is protected by an

    18 order under Rule 75, then the Prosecutor must take

    19 certain steps to lift that order. This would entail,

    20 in some cases, approaching the witnesses themselves.

    21 When witnesses come before Your Honours, say,

    22 for example in the Aleksovski case, and testify, it is

    23 their expectation generally that material only be used

    24 in that case. It is not always the position, but in

    25 many of the instances that is the case. Now, it may be

  10. 1 that the witness had not expected that it would be

    2 handed to Defence counsel in other cases. This is a

    3 matter within the knowledge of the Prosecutor because

    4 the Prosecutor is the one that interviews the witnesses

    5 in the first instance. So the Prosecutor may be

    6 obliged to go back to the witness and say, "The

    7 material here appears to be material which is

    8 discoverable in another case, and may we seek, on your

    9 behalf, a variation of the order?" It is possible that

    10 a situation could happen where the witness refuses to

    11 do that, and then steps would have to be taken, such as

    12 the filing of ex-parte orders before the Trial Chamber

    13 in the Kordic and Cerkez cases, so that the Trial

    14 Chamber there could make a determination.

    15 It doesn't fall to Your Honours to initiate

    16 anything, and it certainly doesn't fall to Your Honours

    17 to assume a responsibility which, at the moment, is

    18 carried entirely by the Prosecutor; namely, it doesn't

    19 fall to Your Honours to discover, which is what they

    20 are asking you to do. They are asking you to actually

    21 make discovery. In so doing, Your Honours, you have to

    22 make a judgment and accept responsibility for the

    23 discovery that you make because Your Honours have to

    24 say that this is material which either assists the

    25 defence of Kordic or it doesn't, and then you have to

  11. 1 determine which is then discoverable and which isn't.

    2 In my submission, Your Honour, that is not an

    3 obligation that is imposed upon you by the Rules or the

    4 Statute, it certainly doesn't arise out of any notions

    5 of having to afford a fair trial under Rule 20; that is

    6 something that falls to the Trial Chamber that tries

    7 them. So in my submission, Your Honours, there is no

    8 basis whatsoever for them to come before you and to

    9 request that you accept this responsibility based on

    10 this premise, which I say is a false premise, that you

    11 have a duty to ensure that they have a fair trial.

    12 In addition to that, Your Honours, there is

    13 no basis, in my submission, for counsel in Cerkez and

    14 Kordic to actually file a motion in this Chamber. It

    15 may be that I'm taking too narrow a view of the Rules

    16 as I read them, as it has been said by counsel for

    17 Cerkez and Kordic in their motion, but I would have

    18 thought that the Rules dealing with bringing motions

    19 before the Chambers was fairly clear, that the Rules

    20 that I have looked at are Rules 54, 72, and 73, and all

    21 of them make reference to "party," and "party" is given

    22 a definition in the definition section which is Rule

    23 2. The definition of "party" under Rule 2 is the

    24 Prosecutor or the accused.

    25 Now, in my submission, Your Honours, that

  12. 1 doesn't mean the accused in some other case, clearly it

    2 means the accused in this case. Well, the accused in

    3 this case, Your Honour, is Mr. Aleksovski. It is not

    4 Mr. Kordic, it is not Mr. Cerkez. He is the only

    5 accused that is envisaged by those Rules.

    6 So, Your Honours, in my submission, the Rules

    7 don't even permit the bringing of the motion in the

    8 first instance, but certainly I go on to say that under

    9 no circumstances are you cast under any obligation

    10 whatsoever to make discovery under Article 20 of the

    11 Statute.

    12 There is a solution available to Kordic and

    13 Cerkez: They go to their own Chamber. The Prosecutor

    14 has a responsibility that she must perform. She must

    15 examine all her material right across the board, and if

    16 she has any material, then she has a responsibility

    17 under those Rules to deal with it, but it is not a

    18 matter for Your Honours, in my respectful submission;

    19 and accordingly, I would suggest that Your Honours

    20 should dismiss this motion on the basis that (a) there

    21 is no standing to bring it, because the Rules don't

    22 provide for an accused in another case to bring a

    23 motion in this case. But, secondly, they have a

    24 remedy: The remedy is before their own Chamber. Also,

    25 there is no basis in law under the Statute or the Rules

  13. 1 to create an obligation upon this Trial Chamber itself,

    2 separate and distinct from the Prosecutor, to make

    3 discovery.

    4 Those are my submissions, Your Honours,

    5 unless I can assist Your Honours with any other matter.

    6 JUDGE RODRIGUES: Thank you very much,

    7 Mr. Niemann.

    8 Thank you very much. We might listen to the

    9 Defence first so as to hear all the arguments and then

    10 possibly we will have questions to put to you.

    11 Thank you very much, Mr. Niemann, for your

    12 arguments.

    13 Mr. Mikulicic, you have the floor.

    14 MR. MIKULICIC: Thank you, Your Honours.

    15 Unlike my learned friend the Prosecutor,

    16 Mr. Niemann, the Defence is of the opinion that the

    17 application of Defence counsel from the Kordic case is

    18 fully justified, and the Defence agrees that Defence

    19 counsel in the Kordic case be given insight into all

    20 the materials in this case without any prejudice as to

    21 which of those materials the Defence may actually use

    22 in the Kordic case.

    23 When we're talking about non-public

    24 materials, evidence or testimony provided under

    25 protection in a closed session, or enjoying any other

  14. 1 form of protection, it is our submission that there is

    2 no reason for not allowing the Defence counsel in the

    3 Kordic case to gain insight into those materials, on

    4 condition that Defence counsel be placed under the

    5 obligation not to disclose to third parties; a

    6 principle that you were guided by in the Aleksovski

    7 case.

    8 It is the position of the Defence that the

    9 legal grounds for Defence counsel in the Kordic case

    10 should be understood very simply. It is, in fact, an

    11 endeavour to equilibrium in the position of the parties

    12 in the case. I think there is no dispute that one of

    13 basic principles is the equality of arms of the parties

    14 to the proceedings.

    15 I think that it is also indisputable, as we

    16 have had occasion to see ourselves in this Aleksovski

    17 case, that this quality of arms has been impaired and

    18 to the advantage of the Office of the Prosecution.

    19 This is obvious, and it can be seen from the

    20 Prosecution request in this case, that the Office of

    21 the Prosecution has insight into those testimonies

    22 given in closed hearings. On the other hand, the

    23 Defence does not have any such insight, nor can it gain

    24 access to those materials. Therefore, what the Defence

    25 is requiring from the Kordic case is to equalise their

  15. 1 position with that of the Prosecution, because if one

    2 party to the trial, the Prosecution in this case, can

    3 gain insight into materials from closed sessions, why

    4 should not we ensure that same right to the other

    5 party, the Defence? We feel that in that way we would

    6 ensure a quality of arms between the parties in the

    7 proceedings.

    8 My learned colleague, the Prosecutor, is of

    9 the opinion, and it is an opinion that I can only

    10 partly share, that this situation is covered by Rule

    11 68, which requires of the Prosecution to disclose to

    12 the Defence any evidence which the Defence may use to

    13 support its case. I agree with that, but there is a

    14 matter of principle that arises.

    15 If that is the duty of the Prosecution, and

    16 if it applies to all cases being heard by this

    17 Tribunal, is it objectively possible for the

    18 Prosecution in the Kordic case to devote equal

    19 attention to all the evidence from the Blaskic case and

    20 the Aleksovski case? This is a vast amount of

    21 material, and I think it would be physically impossible

    22 to give equal attention to all these materials. And

    23 let us assume that physically and realistically that is

    24 possible, then another problem arises; that is the

    25 interpretation of the credibility and probative value

  16. 1 of various kinds of evidence.

    2 What may occur is that the Prosecution,

    3 acting in line with Rule 68, does not assess a

    4 testimony or evidence as being relevant for the

    5 Defence, whereas on the other hand, in the opinion of

    6 the Defence, that same evidence may be considered to be

    7 relevant.

    8 Here again, I note a certain inequality.

    9 Why? Because the question of assessing the relevance

    10 of a -- of an exhibit or of a piece of evidence,

    11 whether it can be mitigating or totally exculpatory for

    12 the guilt of the accused is assessed from the

    13 standpoint of the Prosecution.

    14 I should like to draw your attention to Rule

    15 68, and one word in that Rule which I consider to be

    16 particularly important, and that is the word -- it

    17 refers to evidence "known" to the Prosecutor. I think

    18 that this provision needs to be interpreted in a way

    19 that I consider to be logical, and that is that the

    20 Prosecution is obliged to disclose to the Defence, in

    21 the particular case, evidence known to the Prosecutor.

    22 It doesn't say that the Prosecutor has to know all the

    23 evidence in all the cases.

    24 Finally, without having any doubt as regards

    25 the good intentions and honourable approach on the part

  17. 1 of the Prosecution to the evidence, it may occur on

    2 occasion that the Prosecutor may simply neglect this

    3 obligation.

    4 Let me remind you of such a case that

    5 occurred in the Aleksovski case. The Prosecution spoke

    6 to Witness DA and it received information from Witness

    7 DA, but it did not inform the Defence of the same, even

    8 though this was information which can certainly of use

    9 to the accused. The Defence learnt about this quite by

    10 chance, because when speaking to the Witness DA, the

    11 witness said, "I've already told all this to the

    12 Prosecution."

    13 I'm not saying that there was an intentional

    14 error on the part of the Prosecution, but we're all

    15 human beings. Our capacities are limited. Therefore,

    16 I don't think we should place any obstacles in the way

    17 of the Defence counsel in the Kordic case for insight

    18 into the material under the obligation that they must

    19 respect confidentiality, an obligation that applies to

    20 all the participants in these proceedings.

    21 In my submission, Rule 68 cannot be

    22 interpreted extensively, that is, as if it were to

    23 apply to all cases, but, rather, that the intention

    24 behind this Rule is to have a more restrictive

    25 interpretation, and that would be that it is the

  18. 1 Prosecution's obligation to inform the Defence of the

    2 evidence known to the Prosecutor, and those are the

    3 materials that crop up in the course of the

    4 investigations into the case in question.

    5 Without wishing to tire you any further, it

    6 is our submission that the application should be

    7 granted because it is based on a very fundamental

    8 principle, the principle of equality of arms of parties

    9 in the proceedings, and it is our submission that it is

    10 up to you to grant such an application, because these

    11 are materials that were presented in the course of the

    12 presentation of evidence in the case under your

    13 control.

    14 For the present, the Defence has no further

    15 remarks to make. If necessary, we are at Your Honours'

    16 disposal. Thank you.

    17 JUDGE RODRIGUES: Mr. Niemann, I think

    18 Mr. Mikulicic did not use that expression, but at the

    19 end he gave the impression that the Prosecution was

    20 omnipotent, it controls the Tribunal, the Prosecution

    21 and the Defence. I'm not saying that Mr. Mikulicic

    22 actually said that, but in any event, Mr. Mikulicic has

    23 raised a series of questions that you may wish to

    24 address.

    25 MR. NIEMANN: The first thing I should assure

  19. 1 Your Honours, is that the Prosecution is not omnipotent

    2 in any way.

    3 The issue of discovery is a very heavy burden

    4 that has to be carried by the Prosecution, and I'm sure

    5 there are times when people would feel that perhaps it

    6 would be nice if that burden would be shared, but it

    7 creates considerable impractical consequences if it

    8 is.

    9 In different types of proceedings, perhaps

    10 the proceedings to which Mr. Mikulicic is accustomed

    11 to, the Prosecution may not be placed in a situation

    12 where it must entirely carry that burden, because in

    13 some respects, the investigative Judges assist in the

    14 process of gathering the material that's presented to

    15 the Court. From my reading of the Rules of the

    16 Tribunal, it seems that the approach taken to discovery

    17 has been to place that responsibility upon the Office

    18 of the Prosecutor.

    19 Mr. Mikulicic very generously suggested that

    20 it would be a heavy burden on the Prosecutor to have to

    21 examine the material in this case in order to determine

    22 whether or not it fell within Rule 66 or 68 for the

    23 purposes of the Kordic and Cerkez cases.

    24 Let me assure Your Honours that if that was

    25 the extent of the burden imposed upon the Prosecutor,

  20. 1 it would indeed be a very easy burden compared to the

    2 one that we must carry. The Office of the Prosecutor

    3 has literally thousands upon thousands of documents and

    4 material in its store which it must go through in every

    5 case in order to determine whether or not any of that

    6 material falls within the Rule 66 and 68. Under no

    7 circumstances do we in any way claim to be perfect in

    8 this exercise, but the advantage of dealing with the

    9 Aleksovski case as an isolated incident is it has a

    10 beginning and an end, and we know exactly what we are

    11 to look for, and to the extent of our discovery

    12 obligations contained within the parameters of what is

    13 in this case.

    14 I have been informed, Your Honours, that the

    15 Aleksovski case has already been fully examined by

    16 Prosecuting counsel in the Cerkez and Kordic cases, and

    17 has already determined that there is nothing he can see

    18 that falls within Rule 66 and 68 in these proceedings

    19 in relation to Messrs. Kordic and Cerkez. So, Your

    20 Honours, if Mr. Mikulicic is concerned about the

    21 responsibilities imposed upon the Prosecutor in having

    22 to carry out this task, let me assure him, Your

    23 Honours, that it's much broader, much wider and far

    24 more onerous than that.

    25 With respect to equality of arms, well, I

  21. 1 mean, these are terms that can be likely thrown about,

    2 and sometimes lose their meaning when they are. There

    3 is an issue of equality of arms, but it doesn't extend

    4 to the Defence being placed in the possession of all

    5 the information that is at the disposal of the

    6 Prosecutor. That is not what it means. The Prosecutor

    7 has an obligation and duty to carry out investigations

    8 in respect of matters that arose right across the

    9 former Yugoslavia. The Prosecutor's office is in

    10 possession of a vast amount of material.

    11 It cannot be surely suggested that somehow or

    12 other we have some advantage because we are in position

    13 of all of material and the Defence is not in possession

    14 of it. The issue of equality of arms comes to what we

    15 have to bring before the proceedings.

    16 There are very onerous and extensive

    17 obligations placed on the Prosecutor in order to ensure

    18 that any material that she has under Rule 68 which may

    19 be exculpatory or mitigating are discovered. These

    20 matters are taken very seriously, and there's very

    21 serious consequences to the Prosecutor if she fails in

    22 this duty. I'm sure Your Honours would accept that the

    23 Prosecutor would never deliberately fail in this duty,

    24 but there are times, because of the extensive amount of

    25 material, when it is true that some materials are

  22. 1 discovered late, and are always discovered immediately

    2 to the Defence the moment they are found. But this

    3 wouldn't happen with the parameters of a case such as

    4 Aleksovski, where we know exactly what the material is

    5 and where it is, and we know it -- we have direct

    6 access to it. With respect, Your Honours, that's an

    7 easy process of examination.

    8 It's what's contained in the vaults of the

    9 Office of the Prosecutor that is hard to determine,

    10 because at times they are filed under other issues

    11 which don't come to light until much later. And

    12 because of our extensive computer system, we are aided

    13 and assisted in going through our computer records in

    14 discovering this material, and we are very satisfied

    15 that it works as effectively as one could possibly

    16 expect it to work in the circumstances.

    17 But is that a matter for Your Honours? In my

    18 respectful submission, no, it is not. Your Honours

    19 can't take over this huge task of going through all the

    20 material that's held by the Prosecutor. In my

    21 respectful submission it shouldn't fall upon Your

    22 Honours to examine even the material in the Aleksovski

    23 case, which we say is confined, in order to make a

    24 determination.

    25 Mr. Mikulicic says, "Well, just give them all

  23. 1 of it." Well, Your Honours, there's nothing under the

    2 Rules, or the Statute or anywhere else which says that

    3 they're entitled to every piece of material that has

    4 gone public. That's not the exercise at all. It's

    5 material which could be beneficial to the defence of

    6 Kordic and Cerkez, it's just not every piece of

    7 non-public material. Presumably that includes all the

    8 non-public material of the Defence as well.

    9 Now, they may not be concerned, Your Honours,

    10 about their non-public material being released, but

    11 with respect to ours, we have an arrangement with

    12 witnesses and expectations that they have, and so it is

    13 important to identify what is discoverable under the

    14 Rules and to deal precisely with that material and not

    15 to open up some general ambit of discovery.

    16 In my respectful submission there is nothing

    17 in the Rules that says that discovery should be

    18 extended beyond Rule 66 and 68. There's nothing in the

    19 Rules that says that Your Honours have an obligation to

    20 make a discovery, and I am -- I am surprised that the

    21 application would be made by Mr. Mikulicic in this case

    22 that somehow or other all of the materials should be

    23 made available in that, but that, of course, is a

    24 matter for him.

    25 Unless there are any other matters, Your

  24. 1 Honour, that's my response.

    2 JUDGE RODRIGUES: Mr. Niemann, I should like

    3 to address a few questions to you. We know that in the

    4 Tribunal there is an ongoing interesting dialogue

    5 between the common-law and civil law systems that you

    6 yourself referred to, but I think that we have an

    7 international system which is neither common-law nor

    8 civil law. It is our system.

    9 Nevertheless, I should like, in this dialogue

    10 that we have embarked upon, to address a few questions

    11 to you to understand better both the position of the

    12 Defence, as well as the Defence here, and the position

    13 of the Kordic Defence.

    14 Is it true or not that the Prosecutor has, as

    15 you said yourself in a way, has concentrated all this

    16 information coming from various cases? I think that

    17 the Office of the Prosecutor is a single one, it has

    18 its hierarchy, but you have access to all the

    19 information coming from several cases. Is that true or

    20 not?

    21 MR. NIEMANN: Yes, Your Honour, that's true.

    22 JUDGE RODRIGUES: It's true. Therefore, you

    23 are familiar, at the same time , with all the evidence

    24 of the Blaskic, Aleksovski case, Kupreskic case,

    25 Furundzija case and so on, but the Defence is not

  25. 1 familiar with the totality of this information, because

    2 the Defence is not a single body. It doesn't have a

    3 concentration of all that information, I think.

    4 At least from the formal standpoint, one can

    5 say that the Defence is an individual entity. The

    6 Prosecutor is also an individual, but has several

    7 associates that may share amongst themselves the

    8 information from all the different cases, and that is

    9 why I personally often have certain doubts whether each

    10 case is a case with its own individuality or is it a

    11 case with certain elements of identity of other cases,

    12 because I think that this is very important from the

    13 standpoint of the conduct of each case. I don't know

    14 whether you understand me.

    15 My question regarding the equality of arms;

    16 you have often said that there is sometimes a certain

    17 mistrust, that there is very defined contents, but in

    18 reality, do we indeed have a true equality of arms?

    19 Because it is also true, in my view, that the Defence

    20 has other resources which the Prosecution doesn't. It

    21 is in the field, it knows very well all the persons who

    22 have access to documents, the local circumstances and

    23 everything. So I'm asking this question very frankly:

    24 Does equality of arms exist or not?

    25 I don't know whether you could comment on

  26. 1 what I have just said, because it's not really a

    2 question that I'm asking you, it's rather a wish to

    3 share with both parties my concerns.

    4 May I also add one further point? I think

    5 there is a certain specificity among each of the cases,

    6 Blaskic, Kordic, Aleksovski. It is true that there are

    7 other cases regarding the Lasva Valley, but these were

    8 all a part of the same indictment. I think at least

    9 with regard to Aleksovski, Blaskic and Kordic, we could

    10 find certain interrelationships, because they were part

    11 of the same indictment with the same supporting

    12 materials. They were severed, yes, but I still think

    13 they hadn't lost certain links amongst themselves.

    14 Finally, we have certain reservations,

    15 because we are talking about non-public documents. But

    16 if this was not the case, if there were no protective

    17 measures, would there be any problem? Because this

    18 evidence was public. So the real question for me could

    19 be whether the protective measures have been

    20 safeguarded or not. If we didn't have those protective

    21 measures, then these materials would be public and

    22 there would be no problems.

    23 Another question is the following:

    24 Mr. Niemann, there is another question that I should

    25 like to raise. We are involved in the Aleksovski case

  27. 1 and we are discussing a motion from the Kordic case,

    2 but yesterday we touched upon another question. The

    3 Prosecution had asked for the admission of non-public

    4 evidence from Blaskic to Aleksovski. What is the

    5 difference between this and the admission of Aleksovski

    6 material in the Kordic case, particularly if we bear in

    7 mind what I've just said, and that is that in all the

    8 cases in the Lasva Valley, Kordic, Blaskic, and

    9 Aleksovski, they were all part of the same indictment.

    10 Therefore, if they have any individual traits, then

    11 that individuality is constituted by elements of the

    12 identity of the other cases because they have some

    13 common elements.

    14 I don't know, Mr. Niemann, whether we could

    15 not find here a certain inconsistency within the same

    16 Office of the Prosecution in the way I have just

    17 described. The same Office of the Prosecution is

    18 asking one thing -- I am not trying to judge, but it

    19 would seem to me that they are making an opposite

    20 request in a similar situation. And I share also the

    21 question posed by the Defence. It is true that there

    22 is Rule 68 and, Mr. Niemann, you did refer to it and

    23 explain it, but who can judge if the Prosecutor has

    24 given to the Defence or not all the evidence known to

    25 it? Perhaps the Defence has its own defence strategy,

  28. 1 and it would be in a better position to know what would

    2 be exculpatory and what would not.

    3 So if you could assist me, because I have

    4 made a whole series of points, among them there are

    5 some questions, so I apologise for being so broad, but

    6 I would like to hear your opinion and what you think

    7 about all this.

    8 One further point -- I beg your pardon,

    9 Mr. Niemann -- I have my notes. Mr. Meddegoda will

    10 have to continue taking notes.

    11 The other point is the following. I think

    12 that I understood that your reason was as follows:

    13 Kordic and Cerkez are addressing a motion to the

    14 Aleksovski Chamber, and I think I understood your

    15 arguments that they really belong to another case and

    16 that they are not legitimately posed in this case. But

    17 as I said at the beginning of our debate, the

    18 Aleksovski Trial Chamber was officially addressed by

    19 the Blaskic Chamber -- no, I'm sorry, by the Kordic

    20 Chamber. The Kordic Chamber has officially addressed

    21 the Aleksovski Chamber with this request and asking for

    22 its response. I saw this motion this morning. But you

    23 said that your solution would be that the Kordic

    24 Defence should ask its own Trial Chamber -- allow me to

    25 use this term -- to ask its Chamber, that is the Kordic

  29. 1 Chamber, and that the Kordic Chamber will communicate

    2 the materials. The Kordic Chamber is the Kordic

    3 Chamber, but the materials that it could communicate

    4 are in the possession of this Trial Chamber, so only

    5 this Trial Chamber can issue such a ruling. I don't

    6 see how your suggestion could resolve the problem

    7 because the Kordic Chamber cannot order the Aleksovski

    8 Chamber to disclose evidence which Kordic and Cerkez

    9 have indicated to the Kordic Chamber.

    10 So, you see, you have a whole series of

    11 questions. The Aleksovski Chamber, we, the Judges,

    12 have this difficult task of deciding, and we would like

    13 to hear your opinion about all these points and

    14 questions which you could perhaps comment on, and I am

    15 looking forward to hearing your opinion; and, as

    16 regards the questions, I look forward to hearing your

    17 answers.

    18 I apologise for imposing such a heavy burden

    19 on you, but I am sure you are capable of responding

    20 perfectly well. Thank you.

    21 MR. NIEMANN: I will do my best, Your

    22 Honour. If I missed some of the earlier questions

    23 raised by Your Honour, I would be most grateful if you

    24 could remind me of any that I omit to address.

    25 I think what Your Honour is really asking me

  30. 1 deals with a question of, are the Rules satisfactory?

    2 It may be that Your Honour's question relates to the

    3 Rules themselves.

    4 My submission is upon the interpretation I

    5 have placed upon the Rules. Now, that could be amended

    6 if, Your Honours, I may be wrong in my interpretation.

    7 But the way that I have interpreted the Rules is this,

    8 that when it comes to making discovery of material,

    9 that that burden has been placed upon the Office of the

    10 Prosecutor, and I can't find any other Rules and I

    11 can't find anything in the Statute that says that this

    12 is a burden that should be shared by the Chambers

    13 themselves other than ensuring that the Prosecutor does

    14 its job.

    15 I don't know of any mechanism available to

    16 permit or to allow the Trial Chamber to itself embark

    17 upon a process of discovery, which is really

    18 essentially what is being asked by this motion. I

    19 don't know of any Rule or any Article in the Statute

    20 that says this is what Your Honours should do, because

    21 it doesn't just stop with the case that is before Your

    22 Honours as it is cast, as the argument is cast by the

    23 accused Kordic and Cerkez. The way they cast it is

    24 this: They say, "We have a right to a fair trial, and

    25 because we have a right to a fair trial, we're entitled

  31. 1 to discovery of all the non-public material in the

    2 Aleksovski case."

    3 Now, presumably some judgment has to be

    4 made. Do they get everything? Why would they get

    5 everything? What would be their right and entitlement

    6 to everything in the Aleksovski case?

    7 JUDGE RODRIGUES: Excuse me, Mr. Niemann.

    8 Perhaps this is an occasion to bring up another

    9 question.

    10 [Note: Two simultaneous interpretations

    11 follow in the interpretation of Judge Rodrigues'

    12 comments in this passage only]

    13 Mr. Niemann, if the Defence in the Kordic

    14 case requested one thing which is to be informed of the

    15 materials that are available, if they only wanted to

    16 know what were the available documents, and then, in a

    17 further stage, the Kordic Defence may come back saying,

    18 "For this reason, I wish to have such and such a

    19 material." If the Defence wants to have an overview of

    20 all the elements and then to be able to come and say,

    21 "I wish Exhibit number 1 and Exhibit number 10," then

    22 one could ask why did the Defence need to have admitted

    23 into the Kordic record exhibits belonging to the

    24 Aleksovski case?

    25 I apologise for interpreting you, but perhaps

  32. 1 this is the opportunity for bringing into place this

    2 other perspective.

    3 MR. NIEMANN: "How is it done?" I think is

    4 what Your Honour is asking me. How it is done is not

    5 to come to this Chamber. How it is done is to persuade

    6 the Chamber in the Kordic and Cerkez case to order the

    7 Prosecutor to provide a list of the non-public

    8 materials in this case.

    9 Now, if the Prosecutor says there are certain

    10 materials which we are concerned about making available

    11 for whatever reason -- it doesn't matter what it is --

    12 it does it by way of ex-parte application, and it goes

    13 to the Chamber in the Kordic and Cerkez case and says,

    14 "This is the material in the Aleksovski case. This

    15 material we say is not discoverable and Your Honours

    16 should make a decision in that case," and therefore the

    17 debate is put into the appropriate Chamber. Otherwise,

    18 Your Honours are trying to do it here, and I don't know

    19 how much Your Honours know about the Kordic case, but

    20 certainly I wouldn't have enough knowledge at all to

    21 make any decisions on whether or not it falls under 66

    22 or 68, and I think the wisdom of the Statute and the

    23 Rules is that it should be left to determine by the

    24 Chamber that handles the case because it's the only one

    25 that can determine the fair balance in the matter.

  33. 1 So that, in my respectful submission, is how

    2 it is done, it is done that way. And why is it done

    3 that way? Because the Rules expressly permit the

    4 Defence, Kordic and Cerkez, to go by way of motion to

    5 that Chamber and say, "We are not satisfied with

    6 discovery. We don't believe the Prosecutor. The

    7 Prosecutor has told us that there is non-public

    8 material in the Aleksovski case and they've said none

    9 of it comes under Rule 66 or 68. We don't believe

    10 them. We think that they're not telling us everything

    11 that they should tell us. Please force the Prosecutor

    12 to do that." That Chamber then has the power. It

    13 says, "Mr. Prosecutor, go away and tell us what's in

    14 that case."

    15 Now, if the Prosecutor is concerned about

    16 revealing all of it, he can deal with the Chamber. He

    17 can go to the Chamber and say, "Your Honours, here is

    18 my list of all the material in the Aleksovski case, but

    19 we don't want to release it for the following

    20 reasons." And a whole debate can ensue and the Court

    21 can make orders. But are Your Honours going to do

    22 that? Are Your Honours going to say, "I believe, as

    23 the Judge in the Aleksovski case, that this document

    24 ought to be discovered in the Cerkez and Kordic case

    25 because we believe that it is relevant to the

  34. 1 Defence"? If Your Honours do that, I think you are

    2 taking upon a task which is very difficult because you

    3 are not privy to the information that is before that

    4 Chamber, and that is why the Rules are cast in the way

    5 they are. That is why the Rules say that they are

    6 parties. And what are parties? The parties are the

    7 Prosecutor and the accused.

    8 Now, what happens, Your Honours, if I, for

    9 example, don't fully comply with whatever it is that

    10 I'm supposed to respond to in this Trial Chamber in

    11 relation to material in another case? I don't know the

    12 details of that case. This case that I am concerned

    13 relates to Mr. Aleksovski. So if I don't discover

    14 something in this case, clearly Your Honours know

    15 immediately whether or not it should have been

    16 discovered, clearly Your Honours can take whatever

    17 appropriate action is necessary for that failure. But

    18 if we start embarking upon making judgments about what

    19 is relevant for the Defence of another case when it's

    20 not our case, this, in my respectful submission, is

    21 going to lead to a chaotic result. So that is why it

    22 says under the Statute that the Trial Chamber is to

    23 provide the accused with a fair trial in accordance

    24 with the Rules, and what that means is that the

    25 Chamber, in that case, must do so, but it doesn't fall

  35. 1 upon Your Honours.

    2 Your Honours asked me about the process of

    3 discovery and whether or not it is true equality of

    4 arms, that there is a broad number of cases. I didn't

    5 draft the Rules; I am bound by them in my argument.

    6 There could have been incorporated into the Rules a

    7 mechanism whereby a Judge, any Judge could be appointed

    8 to supervise and to pursue discovery. This Judge

    9 presumably may not sit on the trial itself but this

    10 Judge may have a responsibility to go into the files of

    11 the Office of the Prosecutor, to set up an office

    12 there, and go through all the material to make sure

    13 that discovery takes place, and then to prepare a

    14 dossier, which dossier contains all of the material

    15 that the Judge has decided is appropriate for that case

    16 and then to either sit on the case and determine it,

    17 having regard to the dossier or, alternatively, simply

    18 submit it and let the Trial Chamber deal with it in

    19 that way. But I don't find any of that provided for in

    20 the Rules.

    21 The course that has been adopted, it seems to

    22 me, in the Rules is to say: No, that's not going to be

    23 the responsibility of the Chambers, this is going to be

    24 the responsibility of the Prosecutor, and if the

    25 Prosecutor doesn't do it right, then the sanction will

  36. 1 fall to the Prosecutor. I don't know what happens when

    2 an investigative Judge omits relevant evidence in a

    3 case. I'm afraid I have no experience in that area.

    4 But I certainly know the consequences when a Prosecutor

    5 does it.

    6 So, Your Honours, it seems to me that, yes,

    7 the Office of the Prosecutor is in possession of a wide

    8 range of information. I don't for one minute suggest

    9 that there may be material in one case that could

    10 ultimately be relevant in another. Sometimes the

    11 process of discovery, you can't judge it right from the

    12 outset. Things arise during the course of a case, and

    13 opinions that you may have had about whether or not

    14 material is discoverable changes as the case goes on

    15 because circumstances arise.

    16 I think Your Honours' quarrel was not with my

    17 submission but with the Rules themselves because I

    18 don't believe that the Rules cast that responsibility

    19 on the Chambers.

    20 Your Honours, I'll just check ...

    21 Your Honour also asked about the issue of

    22 protective orders. That would have to be dealt with,

    23 in the instance that I envisage, where the Kordic and

    24 Cerkez Defence persuade the Trial Chamber that the

    25 Prosecutor should provide a list of all the materials

  37. 1 in this case, for example. If they are able to

    2 persuade the Bench that that was the appropriate

    3 course, then the Prosecutor would have to make a

    4 judgment as to what it could disclose without breaching

    5 the order, and if it couldn't, to come to this Chamber

    6 and say, "We have been given this order to disclose all

    7 of this material and we are concerned about the

    8 following, we wish to do the following, and may we seek

    9 a variation of the order, protective order, in order to

    10 make it viable in that case?"

    11 I don't think, Your Honours, that it's true

    12 that there is some sort of automatic similarity between

    13 cases. This case itself has been very much confined to

    14 what happened in the Kaonik prison, and the Kordic case

    15 goes over a much broader area. There may be issues in

    16 the Kaonik prison which may ultimately be relevant. I

    17 don't know. But it seems to me that one just can't say

    18 that because this case is in the Lasva Valley,

    19 therefore it somehow or other is relevant to other

    20 cases that involve that valley. Otherwise, this case

    21 would not have lasted the time that it has; we would

    22 have been here for years, probably on end, trying to

    23 produce all of the evidence in relation to the whole of

    24 the Lasva Valley. I mean, it's what differentiates

    25 this case from the Blaskic case, which is a much bigger

  38. 1 case. And so therefore, Your Honours, I don't think

    2 that you can automatically say that the evidence in

    3 this case would be relevant to the Defence in another

    4 case. It is a judgment. Somebody has to make that

    5 judgment. Under the Rules, the Prosecutor has been

    6 given the responsibility to do it; and as I say, it is

    7 not entirely in the province of the Prosecutor. The

    8 Trial Chamber has the responsibility to ensure the

    9 Prosecutor is doing her job. And the Chamber can do

    10 things; it's not beyond the ingenuity of the Chamber to

    11 devise means to supervise the Prosecutor to be sure if

    12 there is any concern at all.

    13 Finally, I think Your Honours asked me about

    14 the question of material that we want to produce in

    15 this case that arose in the Blaskic case.

    16 We make no apologies about the fact that we

    17 knew about this material. We made a value judgment as

    18 to whether or not we would produce it in this case and

    19 decided that it wasn't necessary until further evidence

    20 had been introduced. I don't want to traverse the

    21 whole thing. But the fact that we knew about it

    22 doesn't create an inequality of arms because we are in

    23 possession of a vast amount of material, and it would

    24 be absolutely impossible to prosecute these cases if we

    25 had to hand over thousands upon thousands of documents

  39. 1 in every case just because the trust that has been

    2 given to us to make a determination under 66 and 68 was

    3 not there. I mean, this would become chaotic.

    4 Thousands of pages of material would have to be handed

    5 over.

    6 A lot of the information that the Office of

    7 the Prosecutor has gathered is confidential

    8 information. A lot of the information that the

    9 Prosecutor has gathered is for future cases. The early

    10 revelation of that material would be of enormous

    11 consequence to the prospect of any success in future

    12 prosecutions. We have a difficult job, when we see

    13 material which has been gathered for a future case and

    14 it becomes discoverable under Rule 68, we have a

    15 difficult job to decide, Okay, this material must be

    16 discoverable, but what are we going to do? What are

    17 the consequences that flow from now making it available

    18 prematurely? But that is something we have to live

    19 with and it is something we do and we do it on a

    20 regular basis.

    21 If you are saying that, well, the Prosecutor

    22 can't really judge what a Defendant might want, then it

    23 doesn't just arise in these cases, it arises right

    24 across the board, and in my respectful submission, the

    25 Rules don't envisage that an investigative judge can go

  40. 1 in there and pursue that. If the Rules change, my

    2 submissions would change accordingly.

    3 JUDGE RODRIGUES: Mr. Niemann, I see that

    4 time is running out. All of what you have said has

    5 been very interesting.

    6 I'm looking also towards the interpretation

    7 booth. They are signalling that maybe we should take a

    8 break. They do need a rest. We still have the whole

    9 of the afternoon to discuss this matter, so I think we

    10 will now take a 20-minute break and then we will resume

    11 our hearing, and maybe, Mr. Meddegoda, you can take

    12 notes and tell Mr. Niemann which questions he has

    13 omitted, which questions he has addressed.

    14 So a pause of 20 minutes.

    15 --- Recess taken at 3.45 p.m.

    16 --- On resuming at 4.17 p.m.

    17 JUDGE RODRIGUES: Mr. Niemann, you have the

    18 floor. You may continue. We are all yours and we will

    19 pay a lot of attention to your arguments, as we always

    20 do, might I add.

    21 MR. NIEMANN: During the break I've been

    22 shown the decision of the Chamber in the case of Kordic

    23 and Cerkez in relation to this issue, and it is indeed

    24 the first time that I have seen it. What I have

    25 noticed is that Your Honour is also a Judge of that

  41. 1 Chamber, so all I've said about your not being in a

    2 position to judge the relevance I withdraw.

    3 But if you ask me then should it be, as Your

    4 Honour is presiding in this Chamber, I would still

    5 answer no, but I would say that there is another Rule,

    6 which is Rule 85 (v), which I think would probably

    7 provide Your Honour with the provision whereby you

    8 could put evidence in in the course of proceedings,

    9 seeing as that Your Honour is sitting on both

    10 Chambers.

    11 But I would go back to what I said, and say

    12 that it still doesn't become an issue for this Trial

    13 Chamber itself to take on the responsibility of

    14 discovery based on the fact that the accused Kordic and

    15 Cerkez say they are entitled to a fair trial.

    16 Your Honours --

    17 JUDGE RODRIGUES: Sorry for interrupting you,

    18 Mr. Niemann. That is precisely why the Trial Chamber

    19 in the Kordic case decided that the Chambers should be

    20 addressed to and not the Presiding Judge of a Chamber.

    21 That's the reason why I'm sitting here with my

    22 colleagues and not on my own.

    23 MR. NIEMANN: Your Honours, I just reviewed

    24 some of the issues that were raised earlier, and Your

    25 Honour has asked me to do that.

  42. 1 Your Honour spoke of the links between the

    2 cases, and that sort of gives rise to a commonality of

    3 evidence applicable. We haven't suggested that that is

    4 not so, but I think that there's a very fine analysis

    5 that has to go on in relation to what happens in the

    6 event of severance.

    7 The situation with severance, Your Honours,

    8 in my submission, is this: That in many instances it

    9 comes out to be favourable to the Defence if there is

    10 large indictment where all the parties are joined.

    11 It's favourable to the Defence if it is severed,

    12 because evidence which is against other accused is not

    13 brought into the consideration of the Tribunal of fact

    14 when this comes to decide whether or not a particular

    15 accused has committed the crime. So there is a paring

    16 down of evidence. It's pared down because if there is

    17 severance, it is open to the accused to argue before

    18 the Chamber, "This evidence shouldn't be admitted in my

    19 trial. It's not relevant to me, it's relevant to

    20 another accused."

    21 Now, in the event of a joint trial, the

    22 accused can't do that because the Prosecution is

    23 leading evidence against all accused. So the Tribunal

    24 of fact hears the broad ambit of the evidence, and

    25 sometimes accused persons argue, sometimes rightly,

  43. 1 sometimes wrongly, that that broad evidence that's

    2 brought against all the accused works a detriment to

    3 the accused, and so that's why a motion for severance

    4 is applied.

    5 I'm not trying endeavouring to lecture Your

    6 Honours, what I'm trying to do is lay the foundation of

    7 the problem that we have here.

    8 When the indictment is severed, however,

    9 there are certain disadvantages, and the certain

    10 disadvantage is that the rich texture of the evidence,

    11 which sometimes is beneficial to not only the

    12 Prosecution but to the Defence as well, is often lost

    13 because it's pared down. So you do have a situation --

    14 if I was on that side of the court, I could imagine

    15 being in a situation where I'm saying, "But there's

    16 lots of things that came out in the Blaskic case and

    17 the Kordic case, or some other case, which I would have

    18 really liked to have had at my disposal when I was

    19 defending 'Mr. X'," but that is the consequence that

    20 flows from severance. You have to make that decision,

    21 because you have this conflict between the totality of

    22 the evidence that could be led and honing down on the

    23 specifics.

    24 What then can be done to resolve it in order

    25 to ensure a fair trial, because it may be that there is

  44. 1 evidence before another Chamber which should properly

    2 be put into this case in order to ensure a fair trial.

    3 And Your Honour quite rightly says, "Well, what happens

    4 if it's not public and we don't know about it?"

    5 Well, that does create a problem. There's

    6 two potential replies to it. One is that to a certain

    7 extent that is the consequences of your decision to

    8 sever. To a certain extent that is. But that rather

    9 harsh decision can't be taken so far as to suggest that

    10 a person can't have a fair trial.

    11 So the solution to it is not to go before the

    12 other Chamber, as happened in this case, to come before

    13 the Aleksovski Chamber and say, "I am Mr. Kordic and I

    14 want the benefit of some material that's been entered

    15 in the Aleksovski case but I don't know what it is."

    16 The procedure is the procedure that I laid

    17 out. You really need to go before the Kordic and

    18 Cerkez Chamber and say, "In order for me to have a fair

    19 trial, I really need to know what is there." And what

    20 has happened under the Rules is that the Tribunal, in

    21 drafting the Rules, has decided, "That's a

    22 responsibility we'll give to the Prosecutor."

    23 Now, I'm not saying that that is the end of

    24 the matter. It may be that the Trial Chamber says, "We

    25 still aren't happy with this." It may still be that

  45. 1 there is confidential material that in order to ensure

    2 there is a fair trial should be made available.

    3 The point is this: That any decision that

    4 you have made in the Aleksovski case relating to

    5 confidentiality doesn't bind the other Chamber, it

    6 binds the parties. We are not allowed to make it

    7 available to the public, the Defence are prevented from

    8 making it available to the public, but that information

    9 can go to another Chamber. That's what I meant when I

    10 said the Prosecutor can be called upon to provide a

    11 list of ex-parte material -- sorry, to provide a list,

    12 ex-parte, of the material that was tendered in this

    13 case to comply with this request, if that was what the

    14 decision of the Chamber would be.

    15 The Prosecutor can then go before the Trial

    16 Chamber and argue the issue of whether or not it should

    17 properly be discoverable under the Rules, and it's that

    18 Chamber that then can deal with it.

    19 So if that happens, the Trial Chamber in the

    20 Kordic and Cerkez cases is, in fact, supervising the

    21 process of discovery, something which it is perfectly

    22 entitled to do under the Rules. It does it by a

    23 process of supervision of the parties in the case

    24 before it. It does it because it's in the interests of

    25 a fair trial, because the accused in that case is

  46. 1 saying, "I am entitled to a fair trial. Under Article

    2 20 it's your responsibility to ensure that I get one,

    3 and I can't have one unless I know what has been

    4 presented in another case."

    5 That is the process which the Rules, in my

    6 respectful submission, envisage. It doesn't envisage a

    7 situation where Your Honours actually take that task

    8 upon yourselves. And when I say this I speak for Judge

    9 Vohrah and -- but not Your Honour, I'm excluding Your

    10 Honour from that.

    11 So, Your Honours, I understand that there is

    12 an obvious concern that you might have of a throwing

    13 back and forth of the parties in this issue. They go

    14 to one Chamber which is their own Chamber, and it says,

    15 "We can't do much about it because the protective

    16 orders have been imposed by another Chamber." I can

    17 understand why Your Honours would be saying, "Well, we

    18 don't want to throw them back again with no remedy.

    19 They've already sought remedy in one Chamber, they've

    20 come to us and we're throwing them back again."

    21 It's not entirely a result without a remedy,

    22 in my submission, because Your Honours can say that the

    23 course that is open to them is the course that I have

    24 laid out, and that is a course that is in accord with

    25 the Rules. And the Prosecutor -- this issue of whether

  47. 1 or not a list is finally drawn up is something which

    2 needs to be resolved in that Chamber, it shouldn't be

    3 resolved here.

    4 When it comes to the end of the day, when the

    5 Kordic and Cerkez Chamber come to a conclusion that

    6 this material, which is protected by an order of this

    7 Chamber, is confidential but it should be released to

    8 the Defence in the Cerkez and Kordic case and so

    9 orders, it's then incumbent upon the Prosecutor to come

    10 before Your Honours and say, "Your Honours, we have

    11 been ordered in this case to disclose this material

    12 pursuant to Rule 66 or 68," or whatever the Rule might

    13 be, "and this material is covered by an order under

    14 Rule 75. We ask this Chamber to please lift the order

    15 to the extent that it can be made available to the

    16 Defence subject to it being binding on the Defence,"

    17 and Your Honours can do that. But that seems to me the

    18 process that's available to you under the Rules. I

    19 just cannot assist Your Honours with any other

    20 procedure when I look at these Rules.

    21 Finally, Your Honours, I think Mr. Mikulicic

    22 made reference to Witness DA, and he said there is no

    23 mala fides on our part, but we would maintain the

    24 position, Your Honours, that Witness DA, his evidence

    25 was not mitigatory, nor was it exculpatory. We didn't

  48. 1 call the witness, so we don't believe an issue of

    2 discovery arose, frankly, but that's not an issue we

    3 need to be concerned about in this case now.

    4 Finally, Your Honours did ask me about what

    5 is the difference between our request in relation to

    6 the confidential witness in Blaskic and the request by

    7 Kordic in this case.

    8 I admit, Your Honour, that I'm a little

    9 confused by the question in the sense that I think

    10 they're entirely different issues. If we want to

    11 present that evidence in this case, and if at the end

    12 of the day Your Honours had decided we could have done,

    13 we would have had to resolve the order made by the

    14 other Court, whether it was an order Your Honours could

    15 have made or whether it was an order that that Chamber

    16 in Blaskic would have had to make to vary is something

    17 we were uncertain of at the time, but it would have had

    18 to have been resolved in a very much similar way. So I

    19 don't see the connection between the two, with respect,

    20 Your Honour, unless there is any aspect of it that I've

    21 missed.

    22 JUDGE RODRIGUES: Mr. Niemann, I think that

    23 if you think that it is possible to import from the

    24 Blaskic case some evidence that is not confidential,

    25 even material that is protected by protective orders or

  49. 1 by any such decisions, if you think that is possible in

    2 that particular case, I think that we can do the same

    3 thing as regards the Kordic case and the Aleksovski

    4 case. We could export from the Aleksovski case some

    5 material in direction of the Kordic case, while

    6 maintaining the same protective orders that have been

    7 rendered by this Trial Chamber.

    8 My question is the following: Why do you

    9 agree to do this in one case, the Aleksovski case, when

    10 you do not agree to do that in the Kordic case? Have

    11 you understood my question?

    12 MR. NIEMANN: I do, Your Honour, and I think

    13 the answer is this, Your Honour: In relation to the

    14 evidence in the Blaskic case, it wasn't a matter of us

    15 going before the Blaskic Chamber, as putting on my

    16 Aleksovski hat, if I might do that, and saying, "Your

    17 Honours, would you please, in order to ensure that the

    18 International Community has a fair trial, examine the

    19 confidential material that's before you and then decide

    20 what it is and then let us have that material."

    21 This is information which the Office of the

    22 Prosecutor had, but as I said earlier, we have a great

    23 deal of information, a vast amount of information.

    24 It's not only information that's before one of the

    25 Chambers, there's a whole lot of material. And so

  50. 1 there is -- if that's considered an advantage, yes,

    2 perhaps it is an advantage. I don't believe it's an

    3 issue that comes to quality of arms, because it's not

    4 an issue in the dispute between the parties of the

    5 cases such that we have other material.

    6 But we would have had to -- we didn't ask the

    7 Blaskic Trial Chamber to take upon itself the

    8 responsibility of making a determination of what was

    9 discoverable and what wasn't, it was material that we

    10 had that we simply wanted to use. And the problem that

    11 I've raised in this case is not the exporting of the

    12 material. The materials can certainly be exported.

    13 The question is: Is it discoverable? If it becomes

    14 discoverable, it certainly becomes exportable. The

    15 issue of protective measures must be resolved, but it

    16 certainly becomes exportable to the other case. I

    17 don't think I need to traverse what happens if you

    18 suspect that the Prosecutor is not being full and

    19 frank. I think there's a procedure available for

    20 that.

    21 JUDGE RODRIGUES: Another question that I

    22 would like to put to you, Mr. Niemann, and maybe that

    23 will help us conclude this argument on this issue.

    24 There is one thing that worries me. I've

    25 always been of the mind that it is preferable, when a

  51. 1 witness has to testify before several Trial Chambers,

    2 even if the witness has been a protected witness in one

    3 case and not in the others, I've always been of the

    4 mind that it is preferable in such a case to admit his

    5 evidence in the case in which the witness testifies a

    6 second or third time. Then the other Trial Chambers

    7 could ask information about the testimony of the

    8 witness, information relative to the issues brought

    9 before this Trial Chamber.

    10 If a witness testifies before various Trial

    11 Chambers, and if, for example, this witness testifies

    12 before the Trial Chamber in Aleksovski, in the

    13 Furundzija case, in the Kupreskic case and the Kordic

    14 case, if we are in such a situation, and if each time

    15 some information is asked about the testimony of the

    16 witness, the risk of having the witness identified is

    17 increased.

    18 This is one question and then I have another

    19 question for you.

    20 What about the expert witnesses, as we call

    21 them? I think there's also a high risk in that

    22 particular case. There could be what we call a

    23 freezing effect. The witness, because he repeats a

    24 number of times elements of information that he's not

    25 himself convinced of, if he repeats that element of

  52. 1 information again and again, then this dubious element

    2 of information can be considered as quite valid and

    3 quite credible.

    4 I'm going to refer to a Latin word, forum, to

    5 describe what happens in a courtroom. We should always

    6 be aware of the fact that there is a risk that arises

    7 when a witness testifies about the same facts in a

    8 number of cases and before a number of Trial Chambers.

    9 I think that we could take a number of

    10 measures which would allow the witness not to have to

    11 come before several Judges, several Trial Chambers in

    12 several different courtrooms. In that particular case,

    13 a presiding officer can be very useful because the

    14 witness can testify before the presiding officer and

    15 then the testimony is given to the Trial Chamber for

    16 which it is relevant. If a witness comes once,

    17 twice, thrice, when we already have his written

    18 statement, only because we need this witness to testify

    19 about one particular element of information, this

    20 witness should not have to come and repeat all over

    21 again what he has said before. The transcript of his

    22 previous testimony can be of great use and can be the

    23 document that is used in order to find the relevant

    24 piece of information.

    25 Maybe I am overly pessimistic, maybe I am

  53. 1 overly optimistic, but I do try to be realistic about

    2 this particular issue.

    3 Another thing. The territory over which this

    4 Tribunal has authority is so small that almost all the

    5 people living in that territory know each other and

    6 they can share a lot of information between

    7 themselves. All these issues we have to bear in mind.

    8 So, again, I have not put forward one

    9 question to you. I have made a general comment on a

    10 number of issues. Maybe you have something to add to

    11 this, maybe you don't, but if you do have something to

    12 share with us, please do. I would be most grateful.

    13 MR. NIEMANN: I think, Your Honours, that

    14 some of the Rules that have now recently been

    15 introduced are very innovative in this regard and will

    16 endeavour, in a number of cases, to obviate the need of

    17 repetition, say, for example, expert witnesses but not

    18 only expert witnesses.

    19 I think that Rule 94, I think it is, talking

    20 of 94(B), talking of the adjudicated material, will

    21 become a very useful provision in due course, but I

    22 think the wisdom of the provision is that it deals with

    23 material which has been adjudicated; in other words, it

    24 has been accepted.

    25 I will give you an example of that. If you

  54. 1 had a witness who testified at length in say, for

    2 example, the Celebici case, this witness was an expert,

    3 and I will give a concrete example. There was a

    4 witness that we called in that case called Professor

    5 Economides. He gave certain evidence about

    6 nationality. In the course of that case, the Trial

    7 Chamber not only quoted at length what Professor

    8 Economides said but quoted it with approval and said

    9 that not only was it accurate and correct but also they

    10 relied upon it in order to come to the conclusion that

    11 they did. It seems to me that it is almost a pointless

    12 exercise to have to call that witness again, who has

    13 been before the Trial Chamber, has testified, been

    14 cross-examined, and it has been accepted.

    15 It becomes a more difficult issue if that is

    16 to be done with witnesses who have only testified in

    17 the course of a proceedings and we don't know the

    18 result, because we don't know the motive behind calling

    19 witnesses in those cases, and it may be that witnesses

    20 for either side may come along to testify with a

    21 less-than-honest motive behind what they are saying.

    22 Hopefully, that's sorted out by the Trial Chamber at

    23 the time the decision is rendered, and we can then

    24 accept or not accept its accuracy.

    25 So I think, Your Honours, that, yes,

  55. 1 certainly there is room in due course, particularly

    2 when it becomes evidence related to specific issues

    3 which are not so directly personal to the case, such as

    4 the issue of international armed conflict. But we are

    5 still very much in our developmental stage and we

    6 probably still have to hear some more evidence on this

    7 question, but it seems to me that we may one day reach

    8 a point where a number of Chambers have said this

    9 conflict was either international or it isn't, and then

    10 in those circumstances that becomes accepted as a

    11 matter to which the Chamber can take judicial notice.

    12 But there is, in my submission, a risk in accepting

    13 testimony before judgment because we just do not know

    14 at the end of the day what's going to happen, and there

    15 is great room for inconsistency to result in that case.

    16 I don't know whether that correctly answered

    17 Your Honour's question, but I think, Your Honours,

    18 there is a great deal of room for us to expand upon

    19 procedure and to devise new ways.

    20 When I spoke of the appointment of an

    21 investigative Judge to supervise and analyse material,

    22 who knows? There may be room in the Rules to do that.

    23 I can't see it. I don't see it in the Rules. It's not

    24 clear to me. It seems to me that the responsibility

    25 has been given to the Office of the Prosecutor. But I

  56. 1 don't think that that's the end of the matter, if Your

    2 Honours please.

    3 JUDGE RODRIGUES: Thank you very much,

    4 Mr. Niemann, for your contribution and for your various

    5 arguments. The Judges are the ones who will eventually

    6 have to make a decision on that particular issue.

    7 Mr. Mikulicic, I don't know if you have any

    8 questions to raise. Maybe you would like to address

    9 the questions I put to Mr. Niemann. But I do have one

    10 particular question that I wish to put to you: From a

    11 formal point of view -- and I am going back on a

    12 question that I put to Mr. Niemann a moment ago -- from

    13 a formal point of view, the Office of the Prosecutor is

    14 an individual entity, and Mr. Niemann has said that the

    15 people in charge of the different cases share the

    16 information between themselves. But from an informal

    17 point of view, we can say that each case has an

    18 individual Defence counsel, and these individual

    19 Defence counsel do not have a common office within

    20 which they share information.

    21 But from what we see happening before our

    22 eyes, we can say that within the Office of the

    23 Prosecutor, there are a number of teams which do not

    24 share their information with any other team of the

    25 Office of the Prosecutor.

  57. 1 Now, as far as the Defence is concerned, even

    2 though the Defence has no common office within which

    3 information can be shared, individual Defence counsel

    4 can and are free to share information, and we know that

    5 to be a fact. We have admissions that lead us to think

    6 that Defence counsel working in various cases have

    7 shared information relating to these various cases.

    8 So from a formal point of view, there is a

    9 difference. The Office of the Prosecutor has in its

    10 hands all the different elements of information

    11 relating to all the cases which it is prosecuting,

    12 whereas it is not the case for the Defence. There is

    13 this difference.

    14 As I have said, even though the Defence finds

    15 itself in a very different situation, Defence counsel

    16 are free to share a lot of information, and that, in a

    17 way, creates a balance, an equality of arms between the

    18 parties.

    19 I think that whatever the situation,

    20 transparency has to be the rule. But in order to

    21 ensure transparency, you don't have to show everything

    22 you have to show; you can have transparency up to a

    23 certain degree. You can have transparency with a

    24 number of safeguards. And the things that you do not

    25 want to reveal, you will not reveal. This still allows

  58. 1 you to reveal a number of things and to be transparent

    2 on a number of issues.

    3 Instead of finding ourselves in the situation

    4 where the Kordic Defence will talk to the Aleksovski

    5 Defence or the Furundzija Defence or the Kupreskic

    6 Defence counsel, instead of finding ourselves in this

    7 situation and finding ourselves in a very risky

    8 situation where orders, protective orders could be

    9 violated, rather than finding ourselves in this

    10 situation, I ask myself if it would not be preferable

    11 to proceed differently and to proceed in a very clear

    12 and transparent manner.

    13 How can we maintain and keep the balance

    14 between the parties? I think you have understood me,

    15 Mr. Mikulicic. I think you have understood what I have

    16 said about the Office of the Prosecutor and what I have

    17 said about the Defence and about the capacity of each

    18 party to share information. I am putting that same

    19 question to you and I am putting forward a number of

    20 arguments in order to see if that helps you respond to

    21 that question.

    22 The Office of the Prosecutor is an individual

    23 entity, and within that individual entity, individuals

    24 share information. That is not the case for the

    25 Defence. But in spite of this situation, I think that

  59. 1 transparency should be our priority because this would

    2 be enable us to avoid situations in which there is a

    3 risk of orders and protective measures being violated.

    4 These are the comments I wanted to make.

    5 These are the questions that I am putting to you,

    6 Mr. Mikulicic, and I would like to know what you think

    7 about all this.

    8 MR. MIKULICIC: Your Honours, I must say that

    9 I am finding a great degree of professional pleasure in

    10 taking part in this discussion because I believe that

    11 this exchange of views on certain issues that are part

    12 of our procedure can only contribute to the procedure

    13 being improved. I believe that no one has any

    14 illusions that it is a perfect one. In my personal

    15 view, there is no such matter that cannot be improved

    16 upon, so it is in this light that I view our discussion

    17 today. Again, let me point out that I am very glad

    18 that we are having this discussion prompted by the

    19 motion on the part of the Kordic Defence.

    20 Let me just make several comments based on

    21 some observations I made while I listened to the

    22 remarks by my learned colleague Mr. Niemann and Your

    23 Honour's comments.

    24 With respect to the Trial Chamber's authority

    25 to discuss these issues, I think this authority is not

  60. 1 questionable; it is something that we need to address

    2 every time such an issue arises. I think that we

    3 cannot do it in a piecemeal manner. You control the

    4 procedure. In that respect, you have the authority to

    5 discuss any issue which arises, such as the one that

    6 has arisen today.

    7 Now, the access to the materials that Defence

    8 is seeking, I would like to address that.

    9 I think we need to be perfectly clear that

    10 the Defence in the Kordic case is asking for access to

    11 the materials which, in this matter and in other

    12 matters - but we are just focusing on this one - to

    13 those materials which have been entered into evidence,

    14 not the evidence which is in the possession of the

    15 Prosecution or the material that the Defence in the

    16 Aleksovski may have in their possession and which has

    17 not been entered into evidence. I think that this is a

    18 fact that we have to bear in mind.

    19 Further, Mr. President, you posed the

    20 question, and I believe that this is the crux of the

    21 matter, there is no doubt that in public sessions

    22 anyone who is in the public gallery or who is following

    23 the proceedings via the closed circuit television in

    24 this building has an opportunity to see the witness and

    25 certain documents. Now, that is the public character

  61. 1 of these proceedings, and we believe that there is no

    2 reason not to use these materials in any other

    3 proceedings should they be necessary.

    4 What we are debating here is entering the

    5 evidence from which protective measures have been

    6 removed in another case, and I think this is the

    7 crucial question. I think that as far as the interest

    8 in finding the truth supersedes the interest in

    9 protecting certain information, especially in a

    10 situation when such protection could be stretched to

    11 another case -- I think that that would be a different

    12 matter. However, we believe that there is absolutely

    13 no reason to bar access to confidential material to the

    14 Kordic Defence, and I'm only talking about the

    15 confidential material which has been entered into

    16 evidence in the case, and again under the same

    17 conditions, that is, that it not be divulged to a third

    18 party. These are the conditions under which they were

    19 originally entered in our matter.

    20 Let me refer you to Rule 68 which obliges the

    21 Prosecution to disclose the exculpatory evidence to the

    22 Defence, and we come immediately to this question: Did

    23 the Prosecution interpret the value of evidence in this

    24 matter; that is, has this evidence been interpreted by

    25 the Prosecution in the same way in which it was

  62. 1 interpreted by the Defence? And I submit that it

    2 cannot always be the case.

    3 A good case in point is the testimony of

    4 Witness DA in this very matter, the Aleksovski matter,

    5 and the Prosecutor just said, "We judge that

    6 Witness DA's testimony cannot help Aleksovski's case,

    7 which is why we did not disclose it to the Defence."

    8 However, having talked to this witness later, the

    9 Defence has come to the conclusion that it can help

    10 their case. The Defence has its own strategy which may

    11 not be known to the Prosecution, and so we cannot say

    12 that the Prosecution is in a position to be the

    13 ultimate judge of what is exculpatory material and what

    14 is not. So the Defence should be given access to this

    15 material and make its own judgment. I again repeat:

    16 If it is confidential material, then it should not be

    17 divulged to third parties; also, it should have access

    18 to all the materials which are public.

    19 Now, let me again point out that the

    20 confidential materials can benefit the Prosecution as

    21 much as the Defence, but if we say that the evidence

    22 which is entered by the Defence and if another Defence

    23 expresses a desire to see it, then we cannot say that

    24 it is up to the Defence to allow another Defence team

    25 again access to such evidence. Any materials that have

  63. 1 been entered into evidence as confidential, regardless

    2 of whether they have been introduced by the Defence or

    3 by the Prosecution, should be made available but in a

    4 limited way.

    5 Now, it is clear that the Prosecutor's Office

    6 is a single body and they are in charge of issuing

    7 indictments and their information has to be available

    8 to everyone in the office. Once an indictment has been

    9 issued, even after an indictment has been issued, the

    10 information which was in support of this indictment is

    11 still available to every person in that office. This

    12 is one side of the coin.

    13 The other side: The Defence has no access to

    14 this flow of information and it cannot have such access

    15 to it. I am not saying that there is no exchange of

    16 information, flow of information between different

    17 Defence teams, but I submit that it is nowhere close,

    18 proportionately speaking, to the information exchanged

    19 within the Prosecutor's Office; and when it comes to

    20 confidential material, there is a significant

    21 difference, because I am not in a position, I do not

    22 have authority to divulge any information to another

    23 Defence team. I could be sanctioned if I did so.

    24 However, there is no such prohibition within the

    25 Prosecutor's Office, and the Prosecutor's request to

  64. 1 include some confidential information in our case is

    2 witness to that. So I must not know certain

    3 information that is confidential in another matter, and

    4 this tells you something about the equilibrium.

    5 Let me again repeat that I believe that the

    6 request by the Kordic Defence team is legitimate and it

    7 should be supported with the reservation that it cannot

    8 be divulged in terms of its confidentiality, and if I

    9 may assist you in any other matter, please let me know.

    10 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.

    11 You have answered our questions.

    12 Mr. Niemann, do you have anything to add as

    13 more or less a closing comment because, after all, we

    14 must end this debate. We would always have more to

    15 say, but we must limit it, I think, though I think it

    16 was very interesting and it can be helpful for all of

    17 us who have to deal with this question and rule on it.

    18 In any event, for a more or less final word,

    19 would you have anything to say?

    20 MR. NIEMANN: Perhaps one very short final

    21 word.

    22 The Office of the Prosecutor cannot be

    23 equated directly to a community of Defence counsel

    24 dealing with different accused persons. The Office of

    25 the Prosecutor does have a single function and

  65. 1 individual Defence counsel have individual functions

    2 relevant to their own cases, so it's not quite a true

    3 analogy to simply say, "Well, the Office of the

    4 Prosecutor can do this but various Defence counsel do

    5 that."

    6 That's the only issue that I wish to raise,

    7 Your Honour.

    8 JUDGE RODRIGUES: Mr. Mikulicic, have you

    9 completed your remarks, or do you have anything else to

    10 add?

    11 MR. MIKULICIC: Thank you, Your Honours. The

    12 Defence has nothing further to say or to give any

    13 additional explanations except to say that we fully

    14 agree with the position of the Prosecution that therein

    15 lies the core of the matter.

    16 JUDGE RODRIGUES: Well, we are going to

    17 adjourn with a certain feeling of satisfaction because

    18 I think the discussion was a very serious one. I think

    19 that we really did have an opportunity to discuss in

    20 depth this issue. I thank you very much for your

    21 participation, and we are going to meet again to deal

    22 with another issue on Friday at 2.30, I think.

    23 Mr. Mikulicic, you seem to be giving me a

    24 sign as if you wanted to add something.

    25 MR. MIKULICIC: Thank you, Your Honours.

  66. 1 Since you mentioned that we would be meeting again on

    2 Friday, I have just one question to ask. We are aware

    3 of the reason for the Status Conference on Friday, so

    4 my question is: Do you consider it necessary for the

    5 accused, Mr. Aleksovski, to be present at the Status

    6 Conference or is it your opinion that his presence is

    7 not absolutely necessary?

    8 JUDGE RODRIGUES: Excuse me, but perhaps it

    9 will be better for me to consult with my colleagues

    10 because we work as a team. I have my personal opinion,

    11 but I wish to consult them.

    12 We have already agreed on this matter, but we

    13 haven't heard the Prosecution. Perhaps we should

    14 first, after all, give Mr. Niemann a chance to express

    15 his views regarding this question. We were about to

    16 decide, I apologise, but I haven't disclosed the

    17 decision, so you are absolutely free to say what you

    18 think about it.

    19 MR. NIEMANN: Your Honours, our position on

    20 the matter is it is a matter for the Defence, but this

    21 is a collateral issue to the trial. So long as

    22 Mr. Aleksovski waives his right to be present at a

    23 collateral matter, we, the Prosecution, certainly have

    24 no objection at all to his absence.

    25 JUDGE RODRIGUES: The Trial Chamber is of the

  67. 1 opinion that the question that we are going to discuss

    2 on Friday at 2.00 p.m. -- I have just been informed it

    3 is 2.00 and not 2.30 -- has something to do with

    4 Mr. Aleksovski, and, therefore, I think that

    5 Mr. Aleksovski should be present. Why? Because he has

    6 an interest in the matter. It has to do with

    7 protection measures for witnesses, and there are

    8 protected witnesses who are his personal friends.

    9 Therefore, there are a number of questions that

    10 directly affect Mr. Aleksovski. And, after all, he was

    11 present at all the hearings when protective orders were

    12 adopted.

    13 Mr. Aleksovski might even be accused of not

    14 respecting an order of the Trial Chamber. He knows.

    15 He was present. And, I think, Mr. Aleksovski, I quite

    16 understand your reasons for not wishing to be here, but

    17 on the other hand, we would like to see you here. We

    18 would like you to be present.

    19 Therefore, Mr. Aleksovski is going to be

    20 present on Friday at 2.00 p.m. for the reasons that we

    21 have mentioned. I think it is quite reasonable for the

    22 Trial Chamber to order the presence of Mr. Aleksovski.

    23 That is our decision.

    24 We can adjourn for today. Thank you once

    25 again to the parties for their contribution to this

  68. 1 debate. Thank you to the interpreters who worked hard,

    2 the Court reporters and the technical booth, and of

    3 course, my legal assistants and my colleagues. That

    4 will be all for today, until Friday at 2.00 p.m.

    5 --- Whereupon the hearing adjourned at

    6 5.12 p.m., to be reconvened on Friday,

    7 the 20th day of November, 1998,

    8 at 2.00 p.m.