Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2892

1 Friday, 29 June 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE PARKER: Good morning.

7 As you can see, unfortunately, Judge Van den Wyngaert is not be

8 able to sit this morning. The expectation is she will be able to sit

9 after the weekend, and the Chamber will sit under Rule 15 bis for today.

10 Now, Mr. Saxon, is there a matter you wish to raise?

11 MR. SAXON: Yes, there is, Your Honour.

12 The Prosecution has been informed, through the Victim Witness

13 Section, that this witness has important professional commitments after

14 today for approximately the next ten days. The witness would be available

15 to return to continue or finish his testimony on the 11th of July.

16 However, on that day, these proceedings will not take place. Therefore,

17 the first sitting today on which the witness's professional commitments

18 would permit him to return would be Thursday, the 12th of July. And it is

19 the Prosecution's understanding, through information received via VWS,

20 that the witness only has one day available, that Thursday, the 12th, on

21 that week.

22 There was a brief discussion between Prosecution and Defence

23 counsel yesterday, and it is the Prosecution's understanding that Defence

24 counsel would prefer that this witness return on Monday, three days from

25 now, to complete his testimony. And I would simply like to make the

Page 2893

1 following points, Your Honour:

2 As you know, Article 20(1) requires that proceedings be conducted

3 with full respect for the rights of the accused as well as due regard for

4 the protection of victims and witnesses. And perhaps the matter of making

5 it possible for a witness to carry on with his livelihood does not fall

6 within the letter of that provision. The Prosecution submits it should

7 fall within the spirit of that provision.

8 Obviously, most witnesses who appear before this Tribunal, apart

9 from their role as witnesses, also have to earn a living. This witness

10 has given the better part of the last two working weeks to this Tribunal,

11 to this case. He has a wife and a son that he supports, and the

12 Prosecution hopes that the Chamber will take this on board before it makes

13 a final decision.

14 The witness was not able to testify last Friday through no fault

15 of his own. The Chamber was not sitting last Friday. Otherwise, we would

16 have been a further day ahead in this witness's testimony.

17 I'd like to point out that quite recently the Trial Chamber has

18 been quite flexible in arranging the schedule of trial proceedings in this

19 case to accommodate other professional commitments of Defence counsel, and

20 the Prosecution would simply ask that the Chamber please show similar

21 flexibility and understanding with regard to the professional commitments

22 of this witness.

23 Finally, if the Chamber does decide to order Mr. Hutsch to

24 continue his testimony on Monday, the Prosecution asks whether it might

25 consider giving Mr. Hutsch a bit of time this morning to use the telephone

Page 2894

1 so that he can rearrange some of these previously-scheduled commitments,

2 and that hopefully would permit the witness to continue his testimony

3 without his mind being cluttered by such worries during cross-examination.

4 JUDGE PARKER: Mr. Saxon.

5 Is there anything to be added, Mr. Mettraux?

6 MR. METTRAUX: Good morning, Your Honour. I'll try to be

7 relatively brief.

8 As indicated by Mr. Saxon, we will oppose the application being

9 made on behalf of Mr. Hutsch for the postponement of the rest of his

10 cross-examination. There are several reasons for that, Your Honour.

11 The first one - and I will start with the point made by Mr. Saxon

12 in relation to a brief discussion which indeed we had with Mr. Saxon -

13 yesterday, Mr. Saxon approached us, asking us what the position of the

14 Defence would be about the possible postponement of the rest of the

15 evidence of Mr. Hutsch, and we've indicated in no uncertain terms that we

16 would object to this application.

17 I also indicate that the approach which was made by the

18 Prosecution to the Defence was made by the Prosecution prior to the

19 commencement of the cross-examination of this witness. Had the

20 Prosecution made an application prior to the commencement of the

21 cross-examination of this witness for postponement of the evidence of

22 Mr. Hutsch on the basis of what we are now told are prior professional

23 commitments, the difference, we would have made an application for the

24 cross-examination not to commence so that the Defence would not be

25 prejudiced in any way by having to slice up its cross-examination.

Page 2895

1 The second basis for objection is obviously a prejudice to the

2 Defence preparation. Having to cut cross-examination into several pieces

3 means, in effect, Your Honour, we'll have to prepare several times. It's

4 not something that can just be retaken afresh ten days from now.

5 Mr. Saxon has indicated that you have been quite lenient in some

6 respect with an application made by counsel, and we're very grateful for

7 that. But might I indicate perhaps, Your Honour, that the Prosecution has

8 several times changed the order of its witnesses, asking the Defence to

9 accommodate its request; and, in all cases, we have agreed to accommodate

10 the Prosecution's difficulties in organising and the travelling and the

11 rescheduling of the witnesses.

12 The Statute which Mr. Saxon mentioned also provides for the rights

13 of the accused to confront the evidence presented against him; and with

14 every fundamental right provided in the Statute, this right is to be read

15 in such a way that the fundamental right is exercised in an effective

16 manner. This means, Your Honour, inter alia that cross-examination

17 should, in principle, unless there are essential reasons or extraordinary

18 reasons, be continuous. There is a risk, we say, that Mr. Hutsch may not

19 return. There is a risk of possible interferences. There is a risk of

20 new stories being made. Mr. Hutsch was permitted last week to return to

21 Germany, and a new document surfaced.

22 There's also a prejudice to our client, Your Honour. Mr. Boskoski

23 has been in detention now for two years or more. He's been awaiting his

24 trial. And we would simply indicate that although we are understanding of

25 difficulties which witnesses may have in scheduling their appearances,

Page 2896

1 they are now witnesses of the Court, and Your Honour has already allowed

2 for arrangements to be made in relation of another witness for vacation

3 plans. We believe that if this witness had an important professional

4 commitment prior to that time, he should have warned the Prosecution or

5 the Prosecution should have queried this matter with the witness himself.

6 We do not believe it would be in the matter of justice to let the witness

7 go ten days. This would also give an undue advantage to the Prosecution

8 which would have ten days now to prepare the re-examination of this

9 witness.

10 Another thing which I wish to indicate at this stage, Your Honour,

11 is if the Chamber were of the mind to grant the Prosecution application

12 for postponement, we would ask two things. First, we would ask that the

13 cross-examination of this witness be interrupted immediately so that the

14 cross-examination would restart in ten days, and the second order which we

15 would seek from the Trial Chamber is an order to the Prosecution to return

16 all documents which have been disclosed to the Prosecution pursuant to the

17 court order which we intended to use for cross-examination, and that the

18 Prosecution makes an undertaking that each and every document, printed or

19 in any other form, be returned to the Defence in the course of the day.

20 I'm grateful.

21 JUDGE PARKER: Mr. Apostolski.

22 MR. APOSTOLSKI: [Interpretation] Your Honours, to save time, I

23 fully support the statement of my colleague, Mr. Mettraux, so I have

24 nothing further to add to the presentation of my colleague Mettraux.

25 JUDGE PARKER: Thank you.

Page 2897

1 MR. SAXON: Could the Prosecution clarify one point?


3 MR. SAXON: With respect to my colleague's reference to a document

4 that surfaced while the direct examination was still going on, that is

5 correct. That is because the Prosecution asked the witness to search for

6 those particular notes, and this topic was reflected in a proofing note

7 that was provided to the Defence before direct examination began.

8 [Trial Chamber confers]

9 JUDGE PARKER: Mr. Hutsch, the Chamber would like to hear from

10 you, how grave would be your problems if your evidence were to continue on

11 Monday. Are you able to assist us there?

12 THE WITNESS: Yes, Your Honour.

13 When I came here last week, it was already planned that my

14 testimony would be finished last week, so I had to arrange an exchange of

15 appointments for this week in a couple of matters that are very important

16 for a project that will start in September in Italy.

17 The second point is that when I came here, it was clear that,

18 normally, I should stay to yesterday. So this afternoon, normally at

19 2.00, I would have had two very important business appointments in

20 Cologne. So I changed that to tomorrow afternoon and on Monday. So, if

21 the Chamber would decide that I should return on Monday, I think that,

22 yeah, it is impossible for me to start this project in September in Italy

23 with some Italian business partners, so that it would be impossible to

24 continue and to start this project with, yeah, a lot of money that would

25 have got lost and a lot of money that I, myself, was investing into this

Page 2898

1 project.

2 JUDGE PARKER: Can the Chamber explore beyond Monday? Tuesday and

3 Wednesday of next week?

4 THE WITNESS: That's exactly the point, Your Honours. I'm now --

5 all the appointments from this week I put into next week, and these

6 appointments are already arranged.

7 Just to remind, I was called up here from -- to come here on

8 Monday, to be prepared for my testimony on Tuesday, and what I saw is just

9 that there was a cross-examination from the Defence that delayed already

10 my appointment on Tuesday here. And since hours now, we are --

11 JUDGE PARKER: Don't get into arguing a case. We want to know the

12 facts of the type of difficulty you would have if your evidence was to

13 continue Tuesday and Wednesday.

14 THE WITNESS: Like I said, it is impossible to change all these

15 appointments again, because then I will really lose my credibility with

16 all my business partners.

17 JUDGE PARKER: Now, do we understand correctly from Mr. Saxon that

18 if you were to return on the 12th of July, that you would only be

19 available that day and not the following day?

20 THE WITNESS: That's right, Your Honour, because on the 13th I

21 have to go to Italy for 14 days to prepare the project.

22 JUDGE PARKER: Thank you.

23 Mr. Mettraux, can we inquire of you the time you would expect to

24 continue and complete the cross-examination?

25 MR. METTRAUX: Your Honour, this will be, I hope, a relatively

Page 2899

1 correct estimate, but I would estimate at this stage that I would need at

2 least two days of cross-examination with this witness, at this stage.

3 JUDGE PARKER: Two days on top of what you have had to date?

4 MR. METTRAUX: That's correct, Your Honour.

5 JUDGE PARKER: So close to three full days?

6 MR. METTRAUX: Approximately, three full days, yes, Your Honour,

7 that's correct.

8 JUDGE PARKER: Thank you.

9 Mr. Apostolski, are you able to put a time on your

10 cross-examination?

11 MR. APOSTOLSKI: [Interpretation] Your Honours, my

12 cross-examination will greatly depend on the cross-examination by my

13 colleague Mettraux. So depending on the topics that my colleague will

14 comprise, I will follow the course of my cross-examination. But at any

15 rate, I think I will need one full day. And still we have good

16 coordination with the Defence of Ljube Boskoski, so maybe it will be an

17 hour less in that day.

18 JUDGE PARKER: Thank you.

19 [Trial Chamber confers]

20 JUDGE PARKER: It is clear to the Chamber that a number of

21 circumstances have contributed to the present situation. They start with

22 the fact that counsel, both for the Prosecution and the Defence, have

23 taken longer with the witnesses immediately preceding this witness than

24 had been anticipated. This has become a feature of this trial, a feature

25 to which all counsel have contributed, and the consequence is that

Page 2900

1 planning of witness scheduling has been adversely affected, so that

2 naturally people who have other commitments and who are simply not in a

3 position to walk away from their retirement or a job which accommodates

4 their absence are suffering difficulty.

5 This particular witness has clearly been anticipated over the last

6 two weeks and was scheduled the week before this and this week, and we are

7 now in a position where his availability over those two weeks is proving

8 quite insufficient.

9 It is also the case with this particular witness that the time

10 estimated for his testimony by the Prosecution has proved typically quite

11 inadequate, and the estimate of planning was exceeded, if I recall it

12 correctly, during the examination-in-chief by the Prosecution; that is,

13 the total time for the whole of the evidence of the witness was exceeded

14 by the evidence-in-chief.

15 It does appear to the Chamber that the estimates now given for

16 cross-examination are excessive, and the Chamber would, in some

17 circumstances, be minded to take the step that it has not done to date in

18 this trial of imposing some strict time limits on cross-examination. The

19 Chamber, however, at the moment, holds back from that because we recognise

20 that this witness is of significance, and, therefore, we do not propose,

21 unless the circumstances become more difficult, to seek to impose time

22 limits on the Defence.

23 Now, having said that, the way this trial is progressing, counsel

24 must be prepared for the Chamber to become increasingly concerned about

25 the time taken with each witness to come, and in particular the time taken

Page 2901

1 in combined cross-examination, because it's not, in the long run, in the

2 interests of the accused, this Chamber, or the Tribunal for this case to

3 simply drag along.

4 So counsel on both sides must expect that the Chamber will become

5 more intrusive in regulating the time taken with witnesses.

6 The position with Mr. Hutsch at the moment is that due to no fault

7 of his own, to complete his evidence he would need to be here, as we would

8 estimate, allowing time for re-examination, until and including Wednesday

9 of next week. If it was simply a matter of an intrusion one further day

10 into his calender, the Chamber would have been prepared to be more

11 definite, even though it would create problems for Mr. Hutsch, but three

12 further days next week appears to the Chamber to create a quite

13 unreasonable demand on Mr. Hutsch.

14 He has his other affairs to attend to. He has been accommodating

15 with those to date, and there are limits in which, having reasonable

16 regard for his other affairs, there are limits to the extent to which this

17 Chamber should impose its convenience on his livelihood and other affairs.

18 For that reason, the Chamber is forced to the view that it would

19 not be proper to allow the cross-examination to take its normal continuous

20 path with the prospect of the evidence finishing next Wednesday.

21 Were we continue today with cross-examination, that would, first

22 of all, exaggerate further problems which Mr. Mettraux has put to us about

23 interference in the course of cross-examination. It is not a right of an

24 accused to be able to continuously cross-examine, but it certainly, in the

25 view of the Chamber, is an advantage which, if the affairs of the Chamber

Page 2902

1 can be managed, ought reasonably to be allowed to an accused. There are

2 many circumstances when that is not able to happen, but this Chamber is

3 reluctant to interfere with the ordinary flow.

4 We are in the position, though, that the only availability of this

5 witness in July, because of the time that this Chamber has already

6 allowed, at the convenience of Defence counsel, for not sitting on the

7 10th and 11th of July, the only day this witness has available from other

8 significant commitments is the 12th of July, which is just one day. Even

9 if we sat through today, one further day on the 12th of July would not

10 provide an adequate time to complete the evidence of this witness, given

11 the estimates made for cross-examination by both Defence counsel.

12 The consequence is the Chamber is forced to the view that we must

13 put off this witness to a time after the summer vacation, which means in

14 late August. That is not to the convenience of anybody, will certainly

15 produce some inefficiency for all parties as we come to resume the

16 evidence, as work will have to be redone, memories revived, et cetera, but

17 there seems to be no alternative to that at the present time. And I say

18 that, in particular, because, (a), as I've indicated, we have decided not

19 to sit for two days on the 10th and 11th, to meet the convenience of

20 Defence counsel, and we have listed a video link for three days in the

21 week following to suit the convenience of a Prosecution witness. So we

22 simply cannot bring this witness on, even with disruption to his work, to

23 conclude his evidence before the vacation.

24 That, therefore, is the consequence of an adjournment now in the

25 course of the evidence, that we must anticipate continuing this witness in

Page 2903

1 August, after the vacation.

2 Now, we trust, Mr. Hutsch, that given the notice available, it

3 will be possible to rearrange your programme so as to be available in one

4 or other of the two last weeks of August, and that can be negotiated,

5 whether it be the third or the fourth week of August. And I think you

6 should programme to be available for four days, because in the

7 circumstances we accept the submission of Mr. Mettraux that it would

8 minimise the inconvenience to him and the disruption of the effectiveness

9 of his cross-examination if we were to adjourn now rather than have the

10 rest of the present day.

11 Mr. Saxon, is there any difficulty with the request of the Defence

12 about the return of material?

13 MR. SAXON: No, Your Honour.

14 JUDGE PARKER: Thank you.

15 We would therefore ask that the Prosecution comply with that

16 today. Given the circumstances, we think it an appropriate measure.

17 Mr. Hutsch, I'm sorry for you that there has been inconvenience.

18 The consequence at the moment is that we are going to adjourn now. We

19 won't be able to use today for your evidence, in fairness to the process

20 of cross-examination and the interests of the accused. The consequence of

21 that is that you will, we would ask, need to be available for four days in

22 the last third or fourth week of August, and we would be grateful if you

23 can re-adjust the world - I see your diary is in your hands - if you could

24 re-adjust the world to meet that situation.

25 We're grateful for you, for that cooperation, and we apologise for

Page 2904

1 the inconvenience, but I think you can see that there are many factors

2 that have to be weighed and that we are forced at the moment to this

3 course of action.

4 I don't believe there's any other matter concerning this that

5 needs to be mentioned now. We leave it to counsel to arrange, in the

6 course of the morning, the return of papers. We will continue on Monday

7 with the ordinary schedule and the next witness, unless, Mr. Saxon, you've

8 got another witness in the wings that we can turn to right now.

9 MR. SAXON: I wish I did, Your Honour, but I don't.

10 JUDGE PARKER: I thought not, yes.

11 We adjourn now to resume on Monday.

12 --- Whereupon the hearing adjourned at 9.35

13 a.m., to be reconvened Monday, July 2, 2007,

14 at 9.00 a.m.